IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


1.0 


LI 


12.5 
2.2 


2.0 


1.8 


1.25      1.4      1.6 

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Photographic 

Sciences 

Corporation 


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33  WEST  MAIN  fVT^EET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


T«chnical  and  Bibliographic  Notas/Notas  tachniquas  at  bibliographiquaa 


Th 
to 


Tha  Inttituta  haa  attamptad  to  obtain  tha  baat 
original  copy  availabia  for  filming.  Faaturaa  of  thia 
copy  which  may  ba  bibliographicaily  uniqua, 
which  may  altar  any  of  tha  imagaa  in  tha 
raproduction,  or  which  may  aignif  icantiy  changa 
tha  uaual  mathod  of  filming,  ara  chackad  balow. 


H 


D 


D 


n 


D 


D 


Coiourad  covars/ 
Couvartura  da  couiaur 


I     I   Covara  damagad/ 


Couvartura  andommagAa 

Covara  rastorad  and/or  laminatad/ 
Couvartura  raataurta  at/ou  paiiicuiAa 


□   Covar  titia  mitaing/ 
La 


titra  da  couvartura  manqua 


r~n   Coiourad  mapa/ 


Cartaa  giographiquaa  an  couiaur 

Coiourad  ink  (i.a.  othar  than  biua  or  black)/ 
Encra  da  couiaur  (i.a.  autra  qua  biaua  ou  noira) 


I     I   Coiourad  plataa  and/or  illuatrationa/ 


Planchaa  at/ou  illuatrationa  an  couiaur 

Bound  with  othar  matarial/ 
Rail*  avac  d'autraa  documanta 

Tight  binding  may  cauaa  shadowa  or  diatortion 
along  intarior  margin/ 

La  raliura  sarrAa  paut  cauaar  da  I'ombra  ou  da  la 
diatortion  la  long  da  la  marga  intAriaura 

Blank  laavaa  addad  during  raatoration  may 
appaar  within  tha  taxt.  Whanavar  poaaibia,  thaaa 
hava  baan  omittad  from  filming/ 
II  aa  paut  |ua  cartainaa  pagaa  bianchaa  aJoutAaa 
lora  d'una  raatauration  apparaiaaant  dana  la  taxta, 
maia.  loraqua  cala  4tait  poaaibia.  caa  pagaa  n'ont 
paa  At*  fiimiaa. 

Additional  commanta:/ 
Commantairac  aupplAmantairaa.- 


L'Inatitut  a  microfilm*  la  maillaur  axamplaira 
qu'il  lui  a  *t*  poaaibia  da  aa  procurar.  Laa  d*taila 
da  cat  axamplaira  qui  aont  paut-Atra  uniquaa  du 
point  da  vua  bibliographiqua,  qui  pauvant  modifiar 
una  imaga  raproduita.  ou  qui  pauvant  axigar  una 
modification  dana  la  mAthoda  normala  da  filmaga 
aont  indiqute  cl-daaaoua. 


r~~|   Coiourad  pagaa/ 


D 


Pagaa  da  couiaur 

Pagaa  damagad/ 
Pagaa  andommag*aa 

Pagea  raatorad  and/oi 

Pagaa  raatauriaa  at/ou  pallicul*aa 

Pagaa  diacoiourad,  atainad  or  foxa( 
Pagaa  d*color*aa,  tachatAaa  ou  piquAoa 

Pagaa  datachad/ 
Pagaa  d*tach*48 

Showthroughy 
Tranaparanca 

Quality  of  prir 

Qualit*  in*gala  da  I'impraaaion 

Includaa  aupplamantary  matarii 
Comprand  du  matAriai  aupplAmantaira 


I —  1  Pagaa  damagad/ 

pn  Pagea  raatorad  and/or  laminatad/ 

rri  Pagaa  diacoiourad,  atainad  or  foxad/ 

r~~|  Pagaa  datachad/ 

I      I  Showthrough/ 

I     I  Quality  of  print  variaa/ 

I     I  Includaa  aupplamantary  matarial/ 


Only  adition  availabia/ 
Saula  Mition  diaponibia 

Pagaa  wholly  or  partially  obacurad  by  arrata 
aiipa.  tiaauaa,  ate.  hava  baan  rafilmad  to 
anaura  tha  baat  poaaibia  imaga/ 
Laa  pagaa  totalamant  ou  partialiamant 
obacurciaa  par  un  fauillat  d'arrata.  una  paiura. 
ate.  ont  At*  filmtea  A  nouvaau  da  fa^on  A 
obtanir  la  mailiaura  imaga  poaaibia. 


Th 
pc 
of 
fill 


Or 
ba 
thi 
ai( 
ot 
fir 
ale 
or 


Th 
ah 
Til 
w» 

Ml 
dif 
an 
ba 
rig 
rafl 
m« 


I 


Thia  itam  ia  filmad  at  tha  reduction  ratio  chackad  balow/ 

Ca  document  eat  filmA  au  taux  da  rAduction  indiquA  ci-deaaoua. 


10X 

14X 

18X 

22X 

26X 

30X 

L 

y 

3 

12X 


16X 


20X 


24X 


28X 


32X 


tails 
I  du 
odifiar 
una 
maga 


Tha  copy  filmad  hara  has  baan  raproducad  thanks 
to  tha  ganarosity  of : 

University  of  British  Columbia  Library 


Tha  imagas  appaaring  hara  ara  tha  bast  quality 
possibia  considaring  tha  condition  and  lagibility 
of  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  spacif ications. 


Original  copias  in  printad  papar  covars  ara  filmad 
baginning  with  tha  front  covar  and  anding  on 
tha  last  paga  with  a  printad  or  illustratad  impras- 
sion,  or  tha  back  covai  whan  appropriata.  All 
othar  original  copias  ara  filmad  baginning  on  tha 
first  paga  with  a  printad  or  illustratad  impras- 
sion.  and  anding  on  tha  last  paga  with  a  printad 
or  illustratad  imprassion. 


Tha  last  racordad  frama  on  aach  microficha 
shall  contain  tha  symbol  -^  (moaning  "CON- 
TINUED"), or  tha  symbol  V  imaaning  "END"). 
whichavar  applias. 

Maps,  platas.  charts,  ate,  may  ba  filmad  at 
diffarant  raduction  ratios,  thosa  too  larga  to  ba 
antiraly  includad  in  ona  axposura  ara  filmad 
baginning  in  tha  uppar  laft  hand  ':ornar.  laft  to 
right  and  top  to  bottom,  as  many  framas  as 
raquirad.  Tha  following  diagrams  illustrata  tha 
mathod: 


L'axampiaira  filmA  fut  raproduit  grica  k  la 
gAnArosit*  da: 

University  of  British  Columbia  Library 


Laa  imagas  suivantas  ont  it*  raproduitas  avac  la 
plus  grand  soin.  compta  tanu  da  la  condition  at 
da  la  nattati  da  I'axamplaira  film*,  at  an 
conformity  avac  las  conditions  du  contrat  da 
filmaga. 

Las  axamplairas  origlnaux  dont  la  couvartura  an 
papiar  ast  ImprimAa  sont  fiimAs  an  commanpant 
par  la  pramiar  plat  at  en  tarminant  soit  par  la 
darniAra  paga  qui  comporta  una  amprainta 
d'imprassion  ou  d'illustration.  soit  par  la  sacond 
plat,  salon  la  cas.  Tous  las  autras  axamplairas 
origlnaux  sont  filmis  an  commanpant  par  la 
pramiira  paga  qui  comporta  una  amprainta 
d'imprassion  ou  d'illustration  at  an  tarminant  par 
la  darniire  paga  qui  comporta  una  talla 
amprainta. 

Un  das  symbolas  suivants  apparaTtra  sur  la 
darniira  image  da  cheque  microfiche,  selon  le 
cas:  le  symbols  — »»  signifie  "A  SUIVRE".  le 
symbols  V  signlfle  "FIN". 

Les  cartes,  planches,  tableaux,  etc.,  peuvent  Atre 
fiimis  A  des  taux  da  reduction  diffirents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  clichi,  il  est  film*  A  partir 
da  I'angle  supArieur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bas.  an  prenant  le  nombre 
d'images  nAcessaire.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


rrata 
o 


)alure. 
lA 


« 


3 


32X 


1 

2 

3 

1 

2 

3 

4 

5 

6 

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OPINIONS 


or 


SENATOR  MORGAN 


AT  VHV 

CONFEBENCE  IN  iPARIS 

OOr  THB 
"     TEBATY.OF  ^KB^S^S^^tS^BtS  OF  AMERICA.  AND 

BARON  DE  C04«£!I:..,^w,««|, 
THER.GHTHONORABUl.0RDH.NHEN. 

THE   HONORABLE  S.R^0HNjrH0MP80N. 

MR.  JUSTICE  HARLAN. 

SENATOR  MORGAN. 

MARQU.S  EM.Ll^mCONTJI  VEIJOSTA^ 

And  HIS  EXCELLENCY  GREQERS  GRAM. 


'CT 


*  J 


1 


18»8. 


^1.1 1  "J" '^ 


^TfJ^ 


THE  TBIBUNAL  HAVINO  TTITOER  CONSIDERATION  THE  MOTION  OF 
ME.  JU8TI0E  HABLAN,  SET  FOBTH  IN  THIS  PAPER,  SENATOR 
MORGAN  SUBMITTED  THE  FOLLOWING  STATEMENTS  AND  REMARKS. 

'  From  the  time  when  the  controversy,  which  is  the  subject  of  this  arbi- 
tration, assumed  the  form  of  treaty  engagements  between  the  United 
States  and  Great  Britain,  it  c^ame  a  matter  that  invoked  the  sovereign 
powrers  of  both  Governments,  and  the  rights  of  tlie  United  States  and 
of  the  subjects  of  Great  Britain  were  merged  in  those  of  each  sovereign, 
as  they  are  fixed  by  that  treaty. 

Each  Government,  in  its  own  way,  and  according  to  its  own  will, 
without  legal  responsibility  to  its  citizens  or  subjects,  nndertook  to 
control  the  entire  subject  in  its  capacity  as  a  sovereign.  Tliese  powers 
were  exerted  in  their  broadest  form  in  the  modus  vivendi  of  1891, 
which  was  fully  executed,  and  in  that  of  1892,  which  is  made  a  part  of 
the  Treaty  of  February  29,  1892.  In  the  creation  of  this  Tribunal  of 
Arbitration,  and  in  the  definition  and  limitation  of  its  powers,  this 
arrangement  was  continued  in  force.  It  results  from  this  attitude  of 
the  two  Governments  toward  the  fur-seals  referred  to  in  the  treaty 
that  any  dealing  with  them  on  the  high  seas  by  any  person  lawftilly 
bearing  the  flag  of  either  Government  is  an  act  for  which  that  Govern- 
ment must  be  responsible  to  the  other  Government  if  any  question 
of  responsibility  arises. 

It  was  quite  as  competent  for  the  two  Governments  to  prohibit  the 
taking  of  fur-seals  as  far  to  the  south  as  the  equator  as  it  was  to  pro- 
hibit it  in  Bering  Sea,  so  far  as  their  citizens  or  subjects  are  concerned; 
and  it  was  as  competent  for  them  to  make  the  prohibition  perpetual 
as  it  was  to  confine  it  to  two  or  more  fishing  seasons.  The  two  Gov- 
ernments forebore  to  prohibit  pelagic  sealing  in  the  North  Pacific 
Ocean  pending  this  arbitration,  in  the  evident  hope  and  belief  that  the 
award  in  this  ease  would  be  made  in  time  to  prevent  any  serionsly 
mischievous  efiiBcts  of  iiiat  pursuit,  by  a  decision  that  would  settle  the 

8 


qaefltion  whether  the  right  and  doty  ot  protecting  seal  life  wonld  rest 
exclusively  with  the  United  States,  or  would  require  to  ha  accom- 
plished tlirou^h  the  concurrent  action  of  both  Governments. 

No  power  was  conferred  on  this  tribunal  to  protect  tbc  sea)  herd, 
the  preservation  of  which  is  the  great  lea«ling  purpose  of  the  arbitra- 
tion, while  tlie  proceedings  are  in  progress.  The  result  is  that  unre- 
strained pelagic  fur-scaling  is  now  being  carried  on  in  the  North 
Pacific  Ocean,  and  if  the  experiences  of  the  yearH  1801  and  1802  are 
repeated  in  1803,  the  destruction  of  the  siiecies  is  now  progressing 
with  fatal  rapidity. 

In  view  of  these  facts,  it  is  of  vital  importance  thnt  the  humane  and 
wise  pur[H)se  of  both  Qovernmonts  to  preserve  and  prote<;t  these  fur- 
seals  siiould  not  be  defeated  by  any  objection  to  the  jurisdiction  of  this 
tribunal  that  is  based  on  techni<;u]  grounds,  and  is  held  back  by  the 
objector  to  meet  the  views  of  counsel,  or  others,  upon  a  question  of  the 
order  of  our  proceedings.  Especially  is  this  true  when  one  of  the 
Governments  is  solemnly  denying  to  this  tribunal  tiie  right  to  consider 
a  vital  feature  of  the  subject  submitted  to  the  tribunal,  which  the 
other  government,  with  equal  force  and  firmness,  assert^s  to  be  clearly 
within  their  competency.  Under  such  conditions  no  one  can  foretell 
with  certainty  whether  the  award  that  this  tribunal  shall  make  will 
result  in  protecting  and  preserving  seal  life,  or  will  only  invite,  here- 
after, a  wider  and  more  determined  controversy  between  the  two  Gov- 
ernments. 

For  my  part  I  regard  the  present  situation  as  being  dangerous  and 
deplorable,  and  I  most  earnestly  desire  tl/at  this  tribunal  shall,  in  the 
outset,  determine  its  responsibilities  and  meet  them  in  whatever  way 
it  may  think  its  duties  Require. 

To  relieve  this  embarrassing  situation  Mr.  Justice  Harlan  has  offered 
the  following  motion : 

Mr.  Justice  llarlan  moved  tliat  the  tribunal,  before  entering  upon  the 
matters  submitted  by  the  treaty,  determine  its  competency  so  far  as  it 
may  be  involved  in  the  following  questions: 

1.  Is  it  competent,  under •tlic  treaty,  for  this  tribunal  to  prescribe 
regulations  applicable  to  such  parts  of  tlie  Nortli  Pacific  Ocean,  out- 
side the  jurisdictional  limits  of  the  two  Governments,  as  are  traversed 
by  the  seals  frequenting  the  Pribilof  Islands,  it',  upon  the  facts,  regu- 
lations of  tliat  character  ai-e  necessary  "  for  the  proper  protection  and 
preservation  of  the  fur-seal  in,  or  habitually  resorting  to,  Behring 

2.  Is  it  competent,  under  the  treaty,  for  the  tribunal  to  prescribe 
regulations  for  a  ''  closed  season  "  covering  such  waters  of  both  Behring 
Sea  aud  the  North  Pacific  Ocean,  outside  the  'jurisdietional  limits  of 


•» 


tho  two  countricH,  aa  aro  liabitiuilly  travermxl  by  these  ftir-Mal,  and 
ombrauMKg  tlie  inoiithH  diiriiig  which  l'iir-8oal  may  be  taken  in  the  oi>eu 
seftH,  and  during  wliieli  ''chmed  Hoasou''  nil  Itiinting  of  Heals  in  Huch 
watera  sliall  bo  forbidden,  provided  tlie  factH  Hhow  that  regulationt)  of 
that  charact<ir  are  neooMHarv  "  for  tliu  pro|)or  protection  and  preserva- 
tion of  tlie  fnr-8eal  in,  or  habitually  rem>rting  to,  Uehring  Hea." 

The  motion  of  Mr.  Justice  Harlan  that  I  have  hist  read  was  sub- 
mitted to  the  Tribunal  of  Arbitration  on  Saturday,  July  16,  at  the  first 
meeting  of  the  Arbitrators  for  consultation,  after  the  close  of  the  oral 
arguments  of  counsel. 

This  motion  relates  to  two  disputed  questions  as  to  the  powers  of 
the  tribunal,  which  were  raised  and  formally  presented  by  the  Uovern- 
ment  of  (Ireat  Britain,  in  its  counter  case,  on  February  3, 1803,  as 
follows  (page  102) : 

The  i)osition  here  taken  on  the  part  of  Oreat  Britain  is  that  already 
taken  in  the  original  case.    It  is  tiiere  stated: 

"Finally,  that  while  Great  liritiiin  has  from  the  tirst  strenuously  and 
consisttmtly  opiioscd  all  the  foregoinu  exceptional  pretensions  and 
claims,  she  has  throughout  been  favorably  disposed  to  the  adoption  of 
general  measures  of  control  of  the  fur-seal  fishery  should  these  be 
found  to  be  iiecesstiry  or  desirable  with  a  view  to  the  protection  of  the 
fVir-seals,  provided  tliat  such  nicasures  be  equitable  and  framed  on 
just  grounds  of  common  interest,  and  that  the  adhesion  of  other  poicern 
be  secured  as  a  guaranty  of  their  <continued  and  impartial  execution." 

For  the  correspondence  on  this  iM)int  the  Arbitrators  are  respect- 
fully referred  to  the  appendix  to  the  United  States  Oase. 

A  claim  is  made  in  the  conchuling  words  of  the  United  States  Oase 
that  such  regulations  be  ''prescribed  by  this  high  tribunal  as  will 
effectually  prohibit  and  prevent  the  capture  anywhere  upon  the  high 
seas  of  any  seals  belonging  to  the  said  herd." 

lier  Majesty's  Government  respectfully  protests  that  no  power  to 
impose  on  the  Rontra<;ting  parties  a  total  )>rohibition  of  pelagic  sealing 
is  «!onferred  on  the  tribunal  by  the  arbitration  treaty,  whether  the 
assent  of  other  mitions  be  or  bo  not  nmde  a  condition  of  such  prohi- 
bition. 

Article  vii  empowers  the  Arbitrators  to  <' determine  what  concur- 
rent regulations  outside  the  jurisdictional  limits  of  the  res|)ective  gov- 
ernments are  necessary,  and  over  what  waters  such  regulations  should 
extend." 

The  iH)wer  thus  c^inferrcd  relates  to  the  only  area  in  dispute,  viz, 
the  waiters  of  Behring  Sea  esistward  of  the  line  of  demarcation  spec- 
ified in  the  Treaty  of  Cession  of  1807.  and  excludes  the  supitosition 
that  prohibition  could  have  been  intended. 

I  have  copied  the  full  statement  of  the  British  Government  as  to  its 
position  on  this  subject,  both  in  the  Case  and  Oonuter  Case,  that  we 
may  have  the  whole  subject  before  us  in  the  connected  form  in  which 
it  is  thus  presented  in  the  British  Counter  Case. 

It  will  be  seen  that  Great  Britain  in  stating  its  objections  and  pro* 


fwmrm 


6 

test  against  the  existence  of  these  powers  under  tlie  treaty  of  Febmary 
20, 1892,  and  their  exercise  by  the  Tribunal  of  Arbitration,  makes  no 
reference  to  anything  except  tlie  text  of  tl:e  treaty.  No  ambiguity  in 
any  part  of  tlie  treaty  Is  suggested  and,  consequently.  Great  Britain 
had  no  occasion  to  go  outside  of  the  text  of  the  treaty  in  order  to  pre- 
sent distinctly  the  grounds  of  objection  to  the  power  of  this  tribunal 
to  make  such  regulations  as  are  stated  in  the  foregoing  extracts  from 
the  British  counter  case.  This  tribunal  nuist  for  that  reason,  and  for 
every  reason  that  could  exist  in  resi»ect  to  Its  warrant  of  authority  to 
take  any  valid  action  in  this  proceeding,  kv)k  to  the  text  of  the  treaty 
alone  for  its  lowers. 

There  Is,  then,  no  occasion  for  dehiy  iu  responding  to  the  objection 
and  i)rotej4t  of  Great  Britlan  as  above  8<,ated,  for  It  is  not  iJOssiWc  that 
any  further  facts  can  be  presented  that  would  throw  any  light  upon 
the  subject. 

This  challenge  of  the  lowers  and  authority  of  the  Tribunal  of  Arbi- 
tration, and  this  protest  against  their  action  In  determining  any  regu 
lations  to  restrain,  or  prohibit,  pelagic  fur  sealing  outside  the  waters  of 
Bering  Sea,  was  not  presented  as  a  diplomatic  question  to  the  Gov- 
ernment of  the  United  States,  but  is  now  for  the  first  time  presented 
as  a  protest  to  the  tribunal,  to  warn  it  against  the  usurpation  of  unwar- 
ranted powers,  and  a  statement  that  the  powers  montioned  in  the 
protest  are  not  conferred  upon  the  tribunal. 

Under  no  circumstances  Is  it  to  be  assumed  that  these  objections  to 
the  lowers  of  the  tribunal  are  lightly  suggested  to  excite  inquiry  or  to 
awaken  the  attention  of  the  tribunal,  coming  iis  they  do  from  u  ??iost 
enlightened  and  powerful  Government,  or  that  tueir  eflre<^t  will  not  be 
felt  in  subsequent  inquiries  by  Great  iirltain  into  the  question  whether 
the  tribunal  has  acted  ultra  vires,  if  its  award  should  injuriously  affect 
the  interests  of  the  subjects  of  Great  Britain.  Moreover,  these  objec- 
tions and  protests  were  repeated  in  the  most  earnest  way  by  the 
attorney -general  of  Great  Britain,  and  by  each  of  tlie  able  counsel  who 
assisted  him,  in  the  written  and  oral  arguments  ma  Je  before  the  tribunal. 
It  is  not  necessary  to  call  attention.  In  detail,  to  these  arguments, 
for  the  record  of  them  is  preserved,  and  their  ability  and  learning  is  so 
conspicuous  that  their  influence  can  not  be  ignored. 

These  objections  to  the  powers  of  the  Tribunal,  as  to  the  regulation  of 
pelagic  sealing,  were  first  taken  in  the  British  Counter  Case. 

In  the  original  Case,  on  page  160,  in  paragraph  19  of  the  "Becapitu- 


lation  of  Argument,"  (he  following  is  (he  position  (aken  by  (he  Bri(ish 
Goverument: 

19. — No  regulations  aft'ectiD^  British  subjects  can  be  established  foi- 
the  protection  and  preservation  of  ftir-seals  in  the  nonterritorial  watera 
of  Bering  8ea  without  the  concurrence  of  Great  Britain. 

That  statement  is  quite  in  line  with  the  {tower  of  this  T..i>  ^al  «o 
declare  either  that  it  accorded  with  tlie  legal  rights  of  Britisli  si.i  jects, 
or  that  it  did  not.  That  watt  not  an  aHsault  on  the  pnwei<»  of  the 
Tribunal,  but  a  strong  appeal  to  its  judgment  on  an  u '  j;ed  rigiit  of 
British  sUbject«t. 

The  other  statement  on  this  subject,  found  in  the  Britif  .  <;a8e,  \ 

have  aticady  quoted,  but  will  repeat.    It  is  taken  from  <»n  o -.tline  of 

argument  on  page  0,  and  is  as  follows: 

Finally,  that  while  Great  Britain  lias  from  the  first  strenuously  and 
consistently  opposed  ail  the  foregoing  exceptional  pretensions  and 
claims,  she  lias  throughout  been  favorably  disposed  to  the  adoption  of 
general  measures  of  control  of  the  fur-sotil  fishery,  should  these  be 
fbund  to  be  necessary  or  denirable  with  a  view  to  the  protection  of  the 
fur-seals,  provided  that  such  measures  be  equitable  and  framed  on  jut»t 
grounds  of  common  interest,  and  that  the  adhesion  of  other  powers  be 
secured  as  a  guarantee  of  their  continued  and  impartial  execution. 

The  objections  raised  in  the  British  counter  case  (above  cited)  to  the 
jurisdiction  of  the  Tribunal  of  Arbitration  are  far  more  urgent  in  their 
demand  for  di])lomatic  settlement  than  the  question,  that  was  settled 
in  that  way,  relating  to  the  matter  of  the  determination  of  Great 
Britain  to  abide  by  and  perform  the  award  of  the  tribunal. 

If,  however,  the  Tribunal  of  Arbitration  shall  determine  to  proceed  to 
a  final  award  without  referring  this  vital  question,  as  to  their  powers, 
to  the  two  Governments  for  their  further  consideration  they  must  incur 
the  risk  of  having  their  award  repudiated  by  the  one  Government  or 
the  other. 

The  case  of  the  United  States  is  based  in  a  large  part,  if  not  most 
largely,  uiwn  the  fact  that  the  Tribunal  of  Arbitration  b.a«  the  iwwers 
that  are  indicated  in  the  two  propositions  stated  in  the  motion  of  Mr. 
Justice  Harlan.  Much  more  than  half  of  the  testimony  offered  and 
cited  by  the  counsel  for  the  respective  Governments  was  adduced  in 
elucidation  of  the  subject  of  the  regulations  that  are  proper  for  the 
protection  and  preservation  of  ftir-seals  in  the  North  Pacific  Ocean. 
It  is,  taken  together,  an  immense  mass  of  facts  and  expert  opinions. 

The  argument  of  counsels  on  the  part  of  the  United  States  were 
addressed  at  great  length  and  with  untiring  industry  and  the  highest 


rmmmm. 


ir5«£^ 


8 

ability  to  point  ont  the  powers  of  this  tribunal  to  regulate  pelagic  fhr- 
sealing  in  the  Korth  I'aciflu  Ocean  and  in  Bering  Sea.  No  motion 
was  made  or  intimated  on  the  hearing  that  this  tribunal  should  refuse  to 
admit  such  evidence  on  the  ground  that  it  had  no  jurisdiction  to  make 
regulations  to  protect  and  preserve  the  fur-seals  in  the  North  Pacific 
Ocean. 

After  all  this,  is  it  a  reasonable  expectation  that  the  United  States 
will  accept  an  award  that  ignores  the  greater  part  of  its  caset  Can 
we  assume  that  the  Uuited  States  has  consented  to  a  treaty,  and  made 
this  earnest  effort  to  present  its  rights  in  accordance  with  it,  and 
will  be  content  that  this  tribunal  shall  find  that  it  has  no  power  even 
to  consider  those  rights? 

Moreover,  we  are  called  upon  to  decide  that  the  powers  of  the  tri- 
bunal to  regulate  pelagic  sealing  are  confined  to  the  area  of  Bering 
Sea;  and  to  base  that  finding  on  the  alleged  fact  that  this  is  "the  only 
arcA  in  dispute."  To  und  this  alleged  fact  we  are  invited  to  quit  the 
text  of  the  Treaty  and  to  go  into  the  diplomatic  correspondence  that 
led  to  its  adoption  for  our  authority  so  to  construe  that  instrument. 
That  process  of  construction  might  be  ado'>te4]  by  this  tribunal  as  a 
means  of  clearing  up  an  ambiguous  expression  in  the  Treaty,  under 
which  a  right  is  claimed  in  favor  of  either  party,  but  no  such  proceed- 
ing can  be  resorted  to  in  order  to  limit  or  enlarge  dtar  powers  as  a 
Tribunal  of  Arbitration.  That  would  be  to  make  a  treaty  by  con- 
struction, and  then  to  proceed  to'administer  rights  under  it. 

Much  less  can  tliis  tribunal  create  its  powers  by  merely  declaring 
them.  Our  powers  are  to  be  found  in  the  clear  meaning  of  the  text  of 
the  treaty,  or  they  do  not  exist.  If  we  find  them  in  the  ireaty  we  can 
not  refuse  to  exercise  them. 

I  will  not  now  present  an  argument  in  sui)port  of  the  e.\i8ten<'e  of 
the  powers  stated  in  tlie  motion  of  Mr.  Justice  Harlan  further  than  to 
make  some  quotations  from  the  text  of  the  treaty,  premising  that  I 
understand  it  to  be  fully  admitted  on  all  hands  that  a  great  and  lead- 
ing purpose  of  both  governments  in  making  this  treaty  is  to  protect 
and  preserve  the  fur-seals  in,  or  that  habitually  resort  to,  Bering  Sea. 

The  fur-seals  to  which  this  treaty  relates  comprise  a  family  or  herd 
ofani-^ials  that  are  in  Bering  Sea,  or  habitually  resort  to  those  waters 
and  the  islands  in  that  sea.  As  tlie  protection  and  preservation  of 
these  animals  is  the  real  result  sought  to  be  accomplished  by  the 
treaty,  the  only  accurate  method  of  defining  the  scope  of  the  powers 


^''SKs^^ni'' 


i 


of  this  tribunal  for  their  protection,  as  to  its  application,  was  to 
describe  tbe  beru ;  but  the  restrictionu  upon  the  limits  of  the  jurisdiction 
are  defined  by  the  territorial  boundaries  of  tlie  tvto  countries  that  own 
all  the  shores  and  islands  that  are  washed  by  the  waters  in  which  these 
animals  are  found  that  resort  to  Bering  Sea. 

In  the  light  of  these  facts,  disclosed  on  the  face  of  the  treaty,  the 
followmg  quotations  from  the  treaty  make  it  clear  that  tliis  tribunal 
possesses  the  powers  stated  in  the  motion  of  Mr.  Justice  Harlan : 

AUTICLE  I. 

The  questions  which  have  arisen  between  the  Goveniniciit  of  Her 
Britannic  Msyesty  and  the  Government  of  the  United  States  concern- 
ing the  jurisdictional  rights  of  the  Unite<l  States  in  the  waters  of  Ber- 
ing Sea,  and  concerning  also  the  preservation  of  the  fvr-seal  in  or  habit- 
ually resorting  to  the  said  sea,  and  the  rights  of  the  citizens  and  stihjects  of 
either  country  as  regards  the  taking  of  fur-seal  in  or  habitually  resorting 
to  the  said  waters,  shall  be  submitted  to  a  tribunal  of  arbitration,  to 
be  composed  of  seven  arbitrators. 


Article  III. 

The  printed  case  of  ca^sh  of  tlie  two  parties,  accompanied  by  the  doc- 
timents,  the  ofticiai  correspondence,  and  the  evidence  on  wliicii  each 
'relies,  shall  be  delivered  in  duplicate  to  ea«h  of  the  arbitrators  and  to 
tlie  agent  of  the  other  party  as  soon  as  may  be  after  the  appointment 
of  the  members  of  the  tribunal,  but  within  a  period  not  exceeding  four 
months  from  the  date  of  the  exchange  of  the  ratifications  of  this  treaty. 

Aeticle  IV. 

Within  three  mouths  after  the  delivery  on  both  sides  of  the  printed 
case  either  party  nuiy,  in  like  manner,  deliver-  in  duplicate  to  each  of 
the  said  arbitratorr^  and  to  the  agent  of  the  other  party  a  counter  cai4e 
and  additional  d«  <-nmeuts,  correspondence,  and  evidence,  in  reply  to 
the  case,  documenti-i,  correspondence,  and  evidence  so  presented  by  the 
other  party. 

ariiole  vr. 

In  deciding  the  matters  submitted  to  the  arbitrators  it  is  agreed  that 
the  following  five  points  sliall  bo  submitted  to  them,  in  order  that  their 
award  shall  embrace  a  distinct  decision  upon  each  of  said  five  points, 
to  wit: 

1.  What  exclusive  jnrisdiction  in  the  sea  now  known  as  the  Behring 
Sea,  and  what  exclusive  rights  in  the  seal  fisheries  therein,  did  Bussia 
assert  and  exercise  prior  and  up  to  the  time  of  the  cession  of  Alaska 

to  the  United  States  ? 

•     .  *  *  «  •  • 

5.  Has  the  United  States  any  right,  and,  if  so,  what  right,  of  j>ro- 
teetion  or  property  in  the  fur-seals  frequerfting  the  islands  of  the  U:tited 


10 

Statet  in  Bekring  Sea  when  such  teais  are  found  ouUide  the  ordinary 
3- mile  limit  f 

Abtiole   VII. 

If  the  dotenniiiiitioii  of  the  foregoing  questions  as  to  tbe  oxcIuri.-i» 
jurisdiction  of  the  United  States  sliall  leave  the  subject  in  such  positii'>n 
that  the  concurrence  of  Great  Britain  is  necessary  to  tbe  establishment 
of  liegulations  for  the  ju-oper  protection  and  preservation  of  the  fur- 
seal  in,  or  habitually  resorting  U),  the  liehriug  Sea,  the  Arbitrators 
shall  then  determine  what  concurrent  Kegulations  outsMle  the  jurisdic- 
tional limits  of  the  respective  Governments  are  necessary,  and  over 
what  waters  such  Kegulations  should  extend,  and  to  aia  them  in  that 
determination,  the  reiiort  of  a  Joint  Commission,  to  be  appointed  by 
the  res|»ective  Governments,  shall  be  laid  before  them,  witli  such  other 
evidence  as  either  Government  may  submit. 

The  High  Contracting  Parties  furthermore  agree  to  cooperate  in 
securing  the  adhesion  of  other  Powers  to  such  Regulations. 

AVTIOLE   IX. 

•  •••••• 

Each  Government  shall  appoint  two  Commissioners  to  investigate, 
conjointly  with  the  Commissioners  of  the  otJ  t  Government,  all  the 
facia  having  relation  to  seal  life  iu  Behring  Sea,  and  the  measures 
necessary  for  its  proper  protection  and  preservation! 

The  four  Commissioners  shall,  so  far  as  they  may  be  able  to  agree, 
make  a  joint  report  to  each  of  the  two  Governments,  and  they  shall  also 
report,  either  jointly  or  severally,  to  each  Governmenton  any  points  on 
which  they  may  be  unable  to  agree. 

These  reports  shall  not  be  made  public  until  they  shall  be  submitted* 
to  the  Arbitrators,  or  it  shall  appear  that  the  contingency  of  their  being 
used  by  the  Arbitrators  can  not  arise. 

Article  XIV. 

The  High  Contracting  Parties  C!;;;age  to  consider  the  result  of  the 
proceedings  of  the  Tribunal  of  Arbitration  as  a  full  and  final  settle- 
ment of  all  the  questions  referred  to  the  Arbitrators. 

MODUS  VIVENDI  OF  1893. 

Artiolk  I. 

Her  Majesty's  (tovernment  will  prohibit,  during  the  pendency  of  the 
arbitration,  seal  killing  in  that  part  of  Behring  Sea  lying  eastward  of 
the  line  of  demarcation  described  in  Article  1,  of  the  Treaty  of  1867 
between  the  United  States  and  Kussia,  and  will  promptly  use  its  best 
efforts  to  ensure  the  observance  of  this  prohibition  by  British  subjects 
and  vessels. 

Article  II. 

The  United  States  Government  will  prohibit  seal  killing  for  the  sax  a 
period  in  the  same  part  of  Behriiig's  Sea  and  on  the  shores  and  islands 
thereof  the  property  of  the  United  States  (in  excess  of  seven  thousand 
five  hundred  to  be  taken  on  the  islands  for  the  subsistence  of  the 
natives),  and  will  promptly  use  its  best  eAbrts  to  ensure  the  observance 
of  this  prohibition  by  United  States  citizens  and  vessels. 


lik 


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11 

Akxiole  III. 

Every  vessel  or  person  offending  against  this  i>rohibition  in  the  said 
waters  of  Behring  Sea  outside  of  tbe  ordinary  territorial  limits  of  the 
United  States  may  be  So'ized  and  detained  by  the  naval  or  other  duly 
commissioued  officers  of  either  of  the  High  Contracting  Parties,  but 
they  shall  be  handed  over,  as  soon  as  practicable,  to  the  authorities  of 
the  nat;lon  to  which  they  respectively  belong,  who  alone  shall  have 
jurisdiction  to  try  the  offence  and  impose  the  penalties  for  the  same. 
The  witnesses  and  proof  necessary  to  establish  the  offence  shall  al8t» 
be  sent  with  them. 

Article  V. 

If  the  result  of  the  arbitration  be  to  affirm' the  right  of  British  seal- 
ers to  take  seals  in  Behring  Sea  within  the  bounds  claimed  by  the 
United  States  under  its  purchase  from  Eussia,  then  compensation 
shall  be  made  by  the  United  States  to  Great  Britain  (for  the  use  of 
her  subjet'ts)  for  abstaining  from  the  exercise  of  that  right  during  pen- 
dency of  the  arbitration,  upon  the  basis  of  sucth  a  regulated  and  limited 
catch  or  catches  as  in  the  opinion  of  the  arbitration  might  have  been 
taken  witliout  an  undue  diminution  of  the  seal  herds;  and,  on  the  otlier 
liaad,  if  the  result  of  the  arbitration  shall  be  to  deny  the  right  of  Brit- 
ish senlers  to  take  seals  within  the  said  watern,  then  compensaticm 
shall  be  made  by  (h-eat  Britain  to  the  United  States  (for  itself,  its  cit- 
izens, and  lessees)  for  this  agreement  to  limit  the  island  catch  to  seven 
thousand  five  hundred  a  season,  upon  the  basis  of  the  difference 
between  this  number  and  such  larger  catch  as  in  the  opinion  of  the 
,  Arbitrators  might  have  been  taken  without  an  undue  dimicution  of  the 
seal  herds. 

There  are  no  italics  in  the  text  I  have  just  quoted.  The  regulations 
proposed  by  the  United  States  for  adoption  by  the  Tribunal  of  Arbi- 
tration are  in  keeping  .vith  the  suggestions  contained  in  the  motion 
presented  by  Mr.  Justice  Harlan ;  but,  while  the  British  Government 
denies  to  (he  tribunal  t'..e  powers  therein  stated,  the  regulations  offered 
by  that  Government  for  our  adoption  would  necessarily  depend  on  the 
assertion  of  the  same  powers. 

They  are  as  follows,  the  regulation  nuujbered  8  having  been  pro- 
seitted  to  the  tribunal  and  then  withdrawn : 

BKGULATIONS. 

1.  All  vessels  engaging  in  pelagi(!  sealing  shall  be  required  to  obtain 
licenses  at  one  or  other  of  the  following  juirts: 

Victoria,  in  the  province  of  British  Columbia. 

Vancouver,  in  tlie  jn-ovince  of  British  Columbia. 

Port  Townsend,  in  Washington  Territory,  in  the  United  States. 

San  Francisco,  in  the  State  of  California,  in  the  United  States. 

2.  Such  licenses  shall  only  be  granted  to  sailing  vessels. 

3.  A  zone  of  '"  miles  around  the  Pribilof  Islands  shall  be  estab- 
lished, withiu  wli.jh  no  seal  hunting  shall  be  permitted  at  any  time. 

4.  A  close  season  from  the  15tli  of  September  to  the  Ist  of  July  shall 


I 


12 


be  established,  during  which  no  pelagic  sealing  shall  be  permitted  in 
Behring  8ea. 
6.  No  rifles  or  nets  shall  be  used  in  pelagic  scaling. 

6.  All  sealing  vessels  shall  be  required  to  carry  a  distinguishing  flag. 

7.  The  masters  in  charge  of  sealing  vessels  shall  keep  accurate  logs 
as  to  the  times  and  places  of  sealing,  the  number  and  sex  of  the  seals 
captured,  and  shall  enter  an  abstrsict  thereof  in  their  oflicial  logs. 

8.  Licenses  shall  be  subject  to  forfeiture  for  breach  of  above  regula- 
tions. 

Whence  comes  tiie  power  of  this  tribunal,  asserted  in  this  i>rogramnie, 
to  bind  Great  Britain  and  the  United  States  to  enact  laws  requiring 
all  vessels  engaged  in  pelagic  sealing  to  obtain  licenses  at  one  or  the 
other  o(  the  following  ports,  viz:  Victoria,  Vancouver,  Port  Townsend, 
and  San  Francisco!  All  of  these  are  seaports  on  the  Pacific  Ocean, 
and  San  Francisco  is  below  the  waters  in  which  fur-seals  lire  found  or 
hunted. 

To  make  this  regulation  the  tribunal  must  gu  1J,000  miles  south  of 
Behring  Sea,  with  its  authority,  and  enter  the  seajwrts  of  both  Govern- 
ments. 

Our  authority,  thus  conceded,  to  make  regulations  to  protect  and 
preserve  the  fur-seals  in  or  habitually  resorting  to  Bering  Sea,  must 
not  only  enter  within  the  ordinary  3-mile  limit  of  each  of  t  dse 
sovereign  powers,  under  this  programme,  but,  while  there,  it  must 
destroy  the  pelagic  hunting  rights  of  all  owners  of  steam  vessels  and  all 
the  persons  who  hnnt  seals  in  canoes,  by  denying  to  them  a  license  for 
pelagic  sealing.  \Je  must,  while  in  these  ports,  disarm  pelagic  seal 
hunters  of  rifles  and  nets  while  leaving  to  the  licensees  the  use  of  the 
deadly  double-barreled  shotguns,  repeating  pistols,  and  swivels.  While 
there  we  are  expected  to  regulate  navigation  by  creating  a  new  inter- 
national flag  for  the  benefit  of  the  fimr  ports  that  are  given  the  monop- 
oly, by  these  proposed  regulations,  of  outfitting  all  licensed  scalers 
and,  (!on«equently,  of  handling  tlie  great  spring  catch. 

Then  when  we  are  engaged  in  establishing  a  dose  season  during  which 
no  pelagic  sealing  shall  be  permitted  in  Bering  Sea,  we  must  also  fix 
the  boundaries  of  that  sea,  not  yet  fixed  by  any  law  or  treaty.  Other- 
wise, we  can  not  define  the  boundary  that  shall  separate  innocence 
from  guilt  in  pelagic  sealing. 

Inside  Bering  Sea,  we  must  fix  and  demark  a  zone  of  20  m'les  around 
the  Pribilof  Islands  within  which  the  seals  shall  live  and  pelagic 
sealing  shall  perish. 

None  ofthese  various  regulations — which  would  destroy  some  private 


V 


a 


w 


1 


18 

rights  of  the  people  and  build  up  others;  would  create  monopolies  for 
some  towns,  to  the  great  disadvantage  of  others;  would  build  up  some 
railroads  and  cripple  others — ai  o  so  clearly  within  the  power  of  this 
tribunal  to  protect  and  preserve  the  fur-seals  as  the  determination  of 
a  close  season  in  the  Pacific  Ocean,  or  of  the  prohibition  of  all  pelagic 
sealing  would  bo. 

The  British  Government,  through  its  attorney- general,  can  give 
authenticity  to  any  plan  we  may  adopt  for  carrying  out  the  purposes 
of  the  treaty,  so  as  to  bind  thatOovernment  at  least,  and  although  the 
regulations  thus  presented  to  the  tribunal  may  involve  an  award  by 
the  tribunal  that  would  be  ultra  viren,  if  they  should  be  adopted,  the 
award  would  have  the  valid  and  binding  consent  of  Great  Britain. 
The  United  States  can  not  be  thus  pledged  to  any  consent  decree  and 
must  accept  what  we  award  without  question,  except  that  the  tribunal 
must  act  within  its  just  powers  under  the  treaty. 

The  regulations  thus  authentically  proposed  by  Great  Britain,  being 
entirely  inconsistent  with  its  contention  that  the  powers  of  this  tribu- 
nal are  confined  to  the  area  of  Bering  Sea,  it  is  justly  to  be  considered 
that  the  objection  to  the  exercise  of  a  more  extended  field  of  jurisdic- 
tion is  waived,  or  abandoned,  by  that  Government. 

The  examination  and  decision  of  the  questions  of  the  right  of  property 
in  the  fur-seals  in,  or  habitually  resorting  to,  Bering  Sea,  and  the  right 
to  protect  them  claimed  by  the  United  States  necessarily  extends  the 
jurisdiction  of  this  tribunal  on  that  question  to  the  North  Pacific 
Ocean 

In  every  important  feature  the  case  is  an  entirety,  and  all  its  parts 
must  be  constraed  in  pari  materia.  It  is  beyond  my  comprehension 
that  the  jurisdiction  of  the  tribunal  should  require  us  to  make  an 
investigation  into  a  great  variety  of  facts  and  the  laws  governing  the 
rights  of  the  United  States  as  to  property  and  protection  in  the  Pacific 
Ocean,  and  that,  when  the  protection  of  its  rights  is  reached,  the 
jurisdiction  of  the  tribunal  should  suddenly  cease. 

Yet,  if  the  objection  of  Great  Britain  is  still  urged,  it  is  apparently 
the  only  method  of  avoiding  a  very  embarrassing  condition,  that  the 
Tribunal  of  Arbitration  should  present  to  both  Governments  the  pres- 
ent attitude  of  the  question  and  ask  them,  by  a  formal  agreement,  to 
remove  the  difficulty. 

Mr.  Justice  Harlan  and  myself  have  stated  to  the  tribunal  our  con- 
viction that  the  United  States  would  regard  the  decision  of  the  tri- 


14 

banal  as  beiug  in  violation  of  the  plain  provisions  of  the  treaty  if  they 
shoald  hold  that  they  have  no  power  under  the  treaty  to  extend  what- 
ever regulations  they  may  find  to  be  necessary  for  the  proper  protection 
of  the  fur-seals  into  the  Northern  Pacific  Ocean. 

As  we  fully  concur  in  that  view  of  the  treaty  and  believe  that  the 
seal  herd  will  be  speedily  destroyed  If  proper  regulations  for  their  pro- 
tection in  Behring  Sea  and  in  the  North  Pacific  Ocean  are  refused,  we 
feel  compelled  to  seek  a  full  opportunity  to  present  the  subject  to  our 
colleagues  without  the  embarrassment  that  must  attend  its  investigation 
in  the  presence  of  a  pending  and  undecided  objection  on  the  part  of 
Great  Britain  that  we  have  no  right  to  consider  the  subject  of  regula- 
tions applicable  to  the  North  Pacific  Ocean,  because  this  tribunal  has 
no  power  to  award  any  regulations  to  apply  outside  the  area  of  Behring 
Sea. 

We  believe  that  the  proper  way  and,  indeed,  the  only  way  to  secure 
an  unembarrassed  consideration  of  this  subject  on  its  merits  is  to 
take  ux)  the  objection  of  Great  Britain  to  the  jurisdiction  of  this  tri- 
bunal and  dispose  of  it.  I  believe  that  every  consideration  of  just  and 
proper  procedure  in  this  case  requires  that  this  vital  question  as  to  the 
powers  of  this  tribui>al  slsould  be  disposed  of  before  any  other  question 
in  the  case  is  taken  uj).  The  questions  of  extending  regulations  beyond 
the  area  of  Behring  Sea  into  the  North  Pacific  Ocean  and  of  prohibit- 
ing i)elagic  sealing  in  Bering  Sea  can  never  be  fairly  considered  upon 
their  merits  under  the  pressure  of  a  pending  objection  made  by  Great 
Britain  that,  whatever  convictions  an  Arbitrator  may  have  as  to  the 
necessity  of  such  regulations,  the  treaty  forbids  such  action  by  the 
Tribunal  of  Arbitration. 

The  justice  of  the  request  that  this  question  shall  be  disposed  of  in 
limine,  aside  from  its  logical  propriety,  is  manifest,  when  it  is  considered 
that  Great  Britain  has  made  this  serious  objection  to  the  powers  of 
the  tribunal  and  yet  insists  that  its  objection  shall  not  be  heard  until 
the  case  has  been  heard  and  decide< ,  in  all  other  respects,  upon  the 
merits. 

Can  it  be  jnstly  claimed  that,  if  the  "ase  should  be  decided  in  favor 
of  the  contention  of  Great  Britain  on  ev3ry  other  point,  on  the  merits, 
that  Government  could  at  its  pleasure,  permit  or  prevent  regulations 
from  being  adopted  applicable  to  the  North  Pacific  Ocean,  however 
necessary  they  may  be,  on  the  ground  taken  in  its  objection  to  the 
jurisdiction  of  this  tribunal  that  it  has  no  power  under  the  treaty  to 
make  such  regulations  t 


-: 


.1 


15 

It  should  be  determined,  now,  whether,  in  the  judgment  of  this 
tribunal,  a  power  of  this  dangerous  magnitude  can  be  wisely  or  Justly 
left  in  the  control  of  either  party. 

If  this  power  to  extend  regulations  to  include  an  area  in  the  North 
Paciflo  Ocean  does  not  exist,  as  Great  Britain  asserts  that  it  does  not 
exist,  no  concession  on  the  part  of  that  Government  could  create  the 
power,  witL  out  the  consent  of  the  United  States.  It  would  require  a 
change  in  the  treaty  to  create  that  power  if  it  does  not  exist. 

The  only  ground  that  cau  be  taken,  in  the  situation  presented  by  the 
objection  of  Great  Britain,  is  that  the  Tribunal  of  Arbitration  will 
decide  the  question  and  leave  it  to  the  respective  Governments  to  deter- 
mine what  course  they  v  ill  pursue  in  view  of  the  decision.  It  will  result 
in  tliis,  at  last,  for  they  arc  sovereign  Governments  and  there  are  none 
who  can  compel  either  of  them,  by  any  peaceful  ^neans,  to  accept  and 
perform  an  award  which  they  may  believe  violates  the  treaty  under 
which  this  tribunal  is  acting. 

I  disclaim  all  authority  to  si/cak  for  the  United  States  and  I  deny 
the  right  of  any  other  person  to  bind  that  Government  by  any  declara- 
tion or  act  that  is  not  clearly  authorized  by  the  treaty. 

I  only  speak  for  myself  when  I  state  my  conviction,  that  the  objec- 
tion urged  by  Great  Britain  to  the  power  of  this  tribnnal  to  make  reg- 
ulations to  protect  the  fur-seals,  which  shall  have  full  operation  out- 
side of  Bering  Sea,  if  it  is  sustained  by  this  tribunal,  will  destroy  a 
leading  and  most  important  feature  of  the  treaty. 

From  some  observations  of  Lord  Hannen,  when  Mr.  Justice  Harlan 
presented  the  propositions  I  have  been  discussing,  I  find  that  his  objec- 
tion to  the  second  proposition  is  to  some  extent  based  on  the  point 
that  there  is  in  that  proposition  a  delimitation  of  the  area  of  waters 
in  the  Pacific  Ocean,  over  which  the  regulations,  if  adopted,  will  extend. 
I  understand  Mr.  Justice  Harlan  to  say  that  such  is  not  his  intention| 
or  his  construction  of  that  resolution. 

Now,  in  order  that  the  question  of  the  power  of  the  tribunal  to  make 
regulations  that  will  extend  to  the  Pacific  Ocean,  outside  of  Bering  Sea, 
and  outride  of  territorial  limits,  may  be  presented  in  a  more  distinct 
form,  if  possible,  I  will  offer  the  foUoVing  as  a  substitute  for  the  two 
propositions  oflftred  by  Mr.  Justice  Harlan,  which,  I  tliink,  covers  the 
substance  of  both  the  propositions  he  has  offered,  and  I  hope  it  may 
remove  the  objections  that  are  made  by  Lord  Hannen  to  the  form  of 
those  propositions: 


16 

"  This  Tribunal  of  Arbitration  is  empowered  by  the  treaty  of  Febru- 
ary 29, 1892,  between  the  Unit«d  States  and  Great  Britain,  to  determine 
what  concurrent  regulations  are  proper  to  be  adopted  and  enforced  by 
tlie  action  of  the  respective  Oovernments,  applicable  to  their  respective 
citizens  or  subjects,  outside  of  their  respective  territorial  limits  and 
outside  of  Bering  Sea,  for  the  protection  and  preservation  of  fur-seals 
in,  or  habitually  resorting  to,  Bering  Sea." 

At  tlie  conclusion  of  the  foregoing  remarks  Mr.  Justice  Harlan 
accepted  tliis  declaration,  offered  by  Senator  Morgan,  as  a  substitute 
for  those  proposed  by  him,  and  moved  the  adoption  of  the  same. 


!."^t!ii""''j?';?yj".y "  "^'.''BWWjifMWi 


^. 


A  QUESTION  BEING  UNDEE  DISCUSSION  AS  TO  THE  PEOI'EE  OEUEE  IN 
WHICH  THE  MATTEES  SUBMITTED  TO  THE  TEIBUNAL  FOB  EXAMI- 
NATION SHOULD  BE  TAKEN  UP  AND  DISPOSED  OF,  AND  AS  TO  THE 
GENERAL  POWEES  AND  DUTIES  OF  THE  TBIUUNAL,  SENATOR 
MORGAN  MADE  THE  FOLLOWING  PEELIMINAKY  BEMABKS  TOUCH- 
ING THE  SAME : 

The  imbject  with  which  tlie  tribunal  is  to  deal  is  a  practical  one 
of  the  highest  importance.  Ou  the  psut  of  Great  Britain  a  claim  is 
asserted,  as  a  sovereign  power,  on  behalf  of  her  subjects,  to  the  right 
of  pelagic  hunting  of  fur-seals  in,  or  habitually  resorting  to  Bering 
Sea,  in  all  the  waters  of  tho  North  Paciflc  Ocean  that  are  not  included 
within  ordinary  territorial  limits,  without  any  restriction,  or  quali- 
fication, as  to  the  time,  place,  or  manner  of  their  destruction. 

In  the  Case  of  Great  Britain,  as  it  is  stated  to  the  Tribunal  of 
Arbitration  in  conformity  with  the  requirements  of  the  treaty,  this 
claim  is  presented  in  the  broadest  form  and  the  present  method  of 
pelagic  hunting  is  Justified  as  being  within  that  claim  of  right,  under 
international  law- 
Great  Britain  lias  cited  the  principles  of  international  law,  and 
certain  analogies  relied  upon  to  support  her  case.  The  Government 
of  the  United  States,  under  the  same  requirement  of  the  treaty,  has 
presented  its  case  upon  the  law  and  evidence  in  like  manner. 

The  claim  of  the  United  States  is  made  in  the  name  and  on  behalf  of 
that  Government,  whidi  asserts  that  it  is  the  sovereign  owner  of  the 
fur-seals  that  habitually  resort  to  the  waters  of  Bering  Sea  and  to  the 
islands  within  that  sea  that  are  east  of  the  water  boundary  between 
liussia  and  the  United  states  of  America,  and  that  it  owns  these  lur- 
seals  as  property,  as  a  source  of  revenue,  and  as  an  instrumentality  of 
government. 

In  one  aspect  of  thin  claim,  the  ownership  of  the  animals  is  alleged 
to  be  completer  In  another  aspect,  the  alleged  ownership  is  stated  as 
a  right  to  have  and  enjoy  the  usufruct  of  these  seal  herds,  for  the  sup- 

17 
11495  M 2 


18 

port  of  a  IcgitimatA  industry  eHtablished  by  the  United  States  on  the 
islandH  of  St.  l*au]  and  St.  Uuirge,  in  Boring  Sea. 

Two  distinct  "  cases"  are  tlius  presented  to  tlie  Tribunal  of  Arbitra- 
tion for  consideration  and  decision,and,wbilc  they  are  not  consolidated, 
as  cross  iu;tions  are  often  set  down  by  the  courts  as  comprising  one 
cas(^,  they  are  to  I)e  heard  at  tlie  same  time  and  the  same  evidence  may 
'  be  used. 

Kach  "case"  must  stand  upon  its  own  merits,  and  it  does  not  neces- 
sarily result  tliat  a  decision  in  favor  of  either  Government  uiK>n  the 
case  presented  by  it  is  a  denial  of  all  tliat  is  claimed  in  the  case  of  the 
other  (fovernnient. 

While  the  award  to  be  made  by  the  Tribunal  of  Arbitration  may 
afllrm  in  whole  or  in  part  the  claims  so  asserted  by  either  Govern- 
ment, it  is  not  a  iinding  in  the  nature  of  a  recovery  of  property  or 
judgment  for  money,  as  damages  or  otlierwise,  in  favor  of  eitner  party 
as  against  the  otiier,  but  is  an  assent  by  both  to  a  settlement  of  con- 
troversies between  them  in  accordance  with  the  terms  of  the  award 
which  the  Tribunal  of  Arbitration  sliall  make.  When  the  award  is 
so  made,  the  result  is  the  same  as  if  loth  (iovernmejits  had  stipulated 
In  the  Treaty,  in  terms,  that  which  sliall  be  expressed  in  the  award. 
In  this  sense,  and  to  this  effect,  whatever  shall  be  declared  in  the 
award  irill  he  a  ^finding  in  favor  of  both  (lovernmmiH. 

No  rule  Is  given  or  intimated  in  the  treaty  to  indicate  whether  the 
tribunal  is  to  take  the  International  law,  or  a  just  view  of  the  comity 
of  nations,  or  the  peculiar  relations  of  the  two  Governments  to  this 
subject,  as  a  guide  to  their  decisions,  or  whether  the  rigid  rules  of  law, 
or  equitable  considerations  aie  to  govern,  and  whether  the  tribunal  is 
held  to  an  vnbeiuling  rule  of  law,  or  whether  there  are  exceptions  to 
it  growing  out  of  long  usage  or  governmental  necessities  which  should 
qualify  the  right  <!laln>cd  by  either  i>arty. 

Another  Impoitant  consideration  was  in  view  when  the  treaty  was 
made,  namely,  the  necessity  for  a  declaration  on  their  part,  rea^ihing 
beyond  the  mere  question  of  the  interests  of  the  United  States  and  the 
subjects  of  Great  Britain  in  the  Alaskan  herd  of  fur-seals,  that  the 
ultimate  assertion  of  governmental  control  over  the  subject  by  all  the 
countries  to  which  fur-seals  resort  in  their  breeding  season  should  be 
established  by  the  <!onsent  of  the  United  States  and  Great  Britain. 

It  was  a  just  expectation  that  all  such  countries  would  find,  in  the 
results  of  this  investigation,  sufficient  reasons  for  adopting  the  rules, 


^m^^w 


Bff^SHI 


19 

or  principles,  that  this  tribunal  would  eBtablish  for  the  protection  of 
fur-Heals. 

The  destruction  of  the  fur-seal  Hi)ccies  in  the  sontheni  hemisphere, 
in  ii  commercial  souhc,  IdmI  already  resulted  from  indiscriminate 
slaughter  on  land  and  sea.  The  slaughter  had  been  conduct(>d  as  a 
matter  of  right  ujwn  the  idea  that  none  of  those  countries  had  treated 
the  fur-seals  as  domestic  animals,  or  animals  that  were  attached  to 
the  soil,  or  as  domesticated  animals  entitled  to  |>r(ite«;tioii  as  property, 
but  had  permitted  them  to  be  treated  as  wild  animals,  subject  to  cap- 
ture by  everyone  at  his  pleasure.  The  people  of  the  I'nited  States 
and  of  (Canada,  and  of  many  other  countries,  had  exercised  this 
assumed  right  of  capture  of  fur-seals  in  the  Antarctic  Seas  until 
within  a  recent  period. 

After  the  southern  herds  had  been  virtually  destroyed,  the  ctdoniza- 
tion  of  Europeans  in  extreme  southern  latitudes  led  to  the  investigation 
of  this  subject  and  the  enactment  of  laws  for  the  prote(!tion  of  fur- 
seals  in  the  hope  that  their  numbers  cdTild  be  thus  restored.  These 
efforts  are  most  noteworthy  in  the  British  colonics  of  New  Zealand  and 
the  Cape  of  Gootl  Hope.  These  iegislati>'e  provisions  were  tentative 
rather  than  conclusive  in  their  operation  u[>on  the  right  of  x)clagic 
hunting,  within  the  prescribed  limitsof  protection,  by  the  people  of  for- 
eign countries.  While  foreigners  were  included  in  the  general  terms 
of  the  statutes  einicted  to  protect  fur-seals,  room  was  Ml  for  the  ques- 
tion whether  they  could  be  rightfully  included  within  the  protection  of 
the  international  law  if  the  pelagic  hunters  chose  to  make  objection. 
In  the  absence  of  such  statutes,  the  right  of  pelagic  sealing  was  not 
questioned,  except  in  seas  and  bays  that  were  claimed  as  being  closed 
for  such  purposes,  such  as  Behring  Sea,  the  sea  of  Okhotsk,  and  the 
waters  in  and  around  the  Japanese  archipelaigo. 

By  insisting  upon  ]tc('uliar  rights  and  powers  of  protection  over  fur- 
seals  in  such  waters  Russia  and  Japan  had,  in  a  large  ir^easure,  pre- 
served their  herds  from  destruction.  But  there  was  then,  and  until 
recently,  no  one  to  assert,  in  the  name  of  any  Government,  that  pelagic 
sealing  was  an  invasion  of  national  interests,  or  rights  of  property,  in 
fur-seals.  The  question  was  not  raised  by  any  serious  dispute,  by  other 
powers,  of  the  right  of  protection  of  fur-seals  as  asserted  by  Kussia; 
and  her  policy  stood  opposed  to  the  alleged  right,  in  a  negative  way 
rather  than  by  an  active  assertion  attended  with  serious  controversy 
or  force.    Such  respect  was  paid  to  her  well-known  attitude  on  the  sub- 


■-IIH 


20 

ject  that  no  occasion  ottered  to  test  the  question  whether  »  right  of 
pelagic  hunting  exiHte<l,  under  tlio  hiwH  of  ntitiona,  which  was  superior 
to  KuHsiii'H  right  to  protect  tUv  fur-seals  agaiuHt  trespassers  on  the 
high  seas,  »>r  within  IJcring  Sea,  when  they  were  found  more  than 
3  miles  from  her  coasts  and  islantls. 

This  question  was  never,  in  fact,  raised  in  any  practical  way  as  a 
■matter  of  internatioinil  disimte,  until  tlie  present  controversy  between 
the  United  States  and  (ireat  Britain. 

The  question  is,  therefore,  entirely  new,  without  any  actual  prece- 
dent for  its  (rontrol,  and  also  without  analogy  tor  its  illustration,  because 
no  other  onimtilN  yieldiii;/  luthmhle  proiluvtH  to  eommeree  have  the  habits 
of  the  fur  seal,  and  none  are  eompvUed  by  t>'e  neeessities  of  e-dstcnee  to 
pluee  themnelreH  ho  entirely  irithin  the  dominion  of  man.  This  award, 
therefore,  dealing  with  questions  tiiat  are  entirely  new,  will  complete 
the  tn^aty  between  these  two  great  iiowers,  ami  establish  between 
them  lixe.l  rule«  of  conduct  in  respect  to  the  protection  and  preserva- 
tion of  fur  seals  in  waters  ofttside  the  limit  of  the  jurisdiction  of  the 
respective  (Jovernnjents.  These  rules  will  be  a  new  compact  ot  inter- 
national agreement,  based  on  rights  and  duties  that  are,  as  yet,  without 
accurate  deliniti<m  and  without  regulation. 

The  interests  of  peace  aiul  good  will  being  the  great  moving  causes, 
and  the  beiietlt  of  niiinkind  and  the  requirements  of  humanity  being 
included  in  tln^  results  of  this  arbitration,  it  is  seen  at  once  that  it  was 
necessary  and  projjer  to  entrust  these  great  powers  to  a  Tribunal  of 
Arbitration  having  vei-y  broad  discretion  and  liberty  of  action. 

The  proper  understanding  of  the  scope  and  purjwse  of  this  treaty  is 
to  be  gathered,  also,  from  the  diplomatic  correspondence  that  attended 
its  negotiation,  and  from  the  various  propositions  and  agreements  that 
took  linal  shape  in  the  text  of  the  treaty. 

The  agreement  between  the  two  Governments  in  the  convention  treats 
the  preservation  and  protection  of  the  seal  herds  in  a  broad  and  rational 
way,  and  assumes  that  both  Governments  will  freely  and  cordially 
exercise  their  powers  for  that  i)urpo8e. 

This  is  not  a  controversy  in  which  the  award  will  tix  the  title  to  spe- 
cific chattels  in  either  of  two  clainumts,  or  give  compensation,  in  dam- 
ages, as  for  the  conversion  of  such  chattels.  It  is  not  a  lawsuit 
between  the  Unitetl  States  and  Great  Britain.  There  ai-e  no  special 
issues  joined  between  them.  All  the  tpiestions  are  put  to  the  tribunal 
interrogatively,  and  the  award  will  settle  principles  and  regulatioua 


tl 

that  will  need  to  be  enforced  by  the  concurrent  action  of  the  two  Oov- 
ernmonts.  There  can  not  be  any  Kolf-executiiiK  powers  included  in  the 
award.  The  riglits  and  duticH  that  arc  ascertained  by  the  award  will 
remain  to  bo  eutbrcrd  by  the  sovereign  powers  of  the  Uoverniuuuta 
concerned. 

The  right  of  property  in  a  herd  of  Heals  within  the  meaning  of  this 
treaty  can  not  depend  on  the  question  whether  every  animal  of  the 
herd  was  born  on  land  belonging  to  the  chiimaut.  If  this  ({uestioi 
could  arise,  in  any  ]>racti<'al  s<>nsc,  it  could  only  arise  between  Kussin 
or  Japan  and  the  United  States,  and  not  between  (ircat  Britain, 
claiming  no  seal  herds,  and  the  United  States,  that  claims  a  '  *r'.t  Ihat 
habitually  resorts  to  the  Pribilof  Islands.  The  <iucstions  submitted  in 
this  treaty  for  .  l»itnition  do  not  hiiijje  ujkmi  the  jtlace  of  nativity  of 
individual  seals,  (mt  relate  to  those  seals  that  resort  habitually  as  herds 
to  the  islands  of  the  United  States,  and  they  turn  upon  that  fiw^t  as  to 
their  identification.  This  question  of  the  intermixing  of  the  lienis 
with  those  of  Russia  was  not  raised  in  tlte  correspondence  that  led  up 
to  this  treaty,  nor  is  it  referred  to  in  the  ti-eaty,  unless  it  is  included  in 
the  inquiry  as  to  the  right  of  property  in  the  seals.  That  inipiiry  relates 
to  the  right  of  projjerty  in  t'  e  seals  in,  or  resorting  to,  liering  Sea, 
without  reference  to  the  place  of  their  nativity.  If  they  have  that 
habit,  Great  Britain  and  the  United  Stalos  have  agreed  in  yiis  treaty 
that  such  a  resorting  to  Bering  Sea  is  the  fiu;t  that  identities  them  as 
the  subject  of  the  award  to  be  rendered  in  this  case. 

If  the  award  is  that  the  United  States  have  a  property  in  the  seals 
so  resorting  to  Bering  Sea,  or  found  in  that  .sea,  it  fully  covers  the 
question  that  the  Arbitrators  are  require*!  to  settle  on  the  subject  of 
l)roperty  in  seals.  If  there  are  other  questions  beyond  this  as  to 
the  title  of  the  United  States  to  individual  seals,  while  living,  the 
decision  of  them  does  not  fully  dispose  of  any  right  claimed  by  Great 
Britaui  to  kill  them  when  found  singlv  or  in  small  parties  far  out  in  the 
deean;  nor  will  it  diminish  any  right  aimed  by  the  United  States  to 
protect  and  preserve  them  if  they  car.  be  identified  as  behmging  to  the 
Alaskan  herd,  though  they  nuiy  have  been  born  upon  Itussian  soil. 

All  the  rights  claimed  by  the  United  States  in  this  treaty  relate  to 
the  protection  and  preservation  of  the  lives  of  seal  herds.  All  the  rights 
claimed  by  Great  Britain  and  so  s.-bmitted  for  .arbitration,  relate  solely 
to  the  right  of  the  destruction  of  individual  seal  life  in  order  to  secure 
the  pelts.    There  is  no  right  of  property  in  any  single,  living  seal, 


imum 


ms 


3i- 


It 


22 

whether  it  is  found  on  shore  or  swimming  in  the  sea,  that  is  in  contro- 
versy between  these  Powers  under  tlie  provisions  ol'  this  treaty. 

The  controversy  submitted  to  the  Arbitrators  is  in  fspect  to  the 
preservation  of  an  entire  body  of  fur-seole.  It  is  impossible  that  the 
Arbitrators  could  dechire  in  favor  of  Great  Britain,  on  the  case  here 
presented  and  upon  the  questions  submitted  in  the  treaty,  that  livinff 
seals  found  at  sea  arc  the  property  of  tliat  Government  or  of  its 
subjects. 

Tiie  case  submitted  by  Great  Britain  is  a  general  and  special  denial 
of  all  property  in  seah  until  they  are  killed.  But  the  Arbitrators  can 
make  an  award  of  the  "  riglits  of  property"  in  a  herd  of  living  seals  io 
the  United  States,  because  such  rights  are  included  in  the  submission 
and  are  claiuieil  in  the  case  of  the  United  Slates. 

The  U'.'ited  Htatos  claim  the  property  interest  in  the  seals  under 
this  arbitriition,  not  for  their  justifi'^ation  in  destroying  them  at  sea  or 
on  the  land,  but  for  the  sole  purpose  of  prottntting  them  against  pelagic 
hunting,  while  Great  Britain  denies  all  such  property  rights  until  the 
seals  are  killed,  and  claims  the  right  to  kill  them  anywhere  that  a 
British  ship  can  liitvfuily  go.  And  the  treaty,  being  framed  to  settle 
these  claims,  on  its  face  admits  that,  if  the  seals  resort  to  Bering  Sea, 
that  fact  presenttj  fully  and  sufficiently  the  (luestion  of  the  property 
right  on  ^hich  the  claiim  of  the  United  States  to  protect  ana  preserve 
the  seals  is  to  be  founded,  and  leaves  the  question  to  be  settled  by  the 
Arbitrators  whether  there  is  vested  in  the  United  States,  as  between 
these  parties,  a  right  of  pro])erty  in  the  seals  that  are  in,  or  habitually* 
resort  to  Bering  Sea. 

The  distance  of  150  miles  from  the  eastern  coasts  of  the  North  Pacific 
Ocean  is  the  extreme  limit,  to  the  westward,  of  pelagic  hunting  in  that 
part  of  the  ocean  that  borders  on  the  North  American  continent. 

Between  February  and  June,  when  the  seals  are  approaching  Bering 
Sea,  the  Japanese  and  Russian  herds  are  moving  along  the  coasts  of 
Japan  and  Itassia,  not  less  than  G,000  miles  away  from  the  Alaskan 
herds.  If  any  stray  Itussian  or  Japanese  seals  have  found  their  way 
across  the  Pacific  Ocean  to  the  American  coast  and  into  the  Alaskan 
herd,  that  fact  could  not  affect  any  right  of  property  that  the  United 
States  may  have  in  the  body  of  the  herd.  And  when  that  right  of 
property  is  asserted  for  the  protection  and  preservation  of  the  estrays 
it  is  sufHcient  to  justify  all  proper  efforts  and  force  that  may  be  requisite 
to  that  end.    Even  though  Russia  or  Japan  may  have  a  higher  property 


1^1 


m 


mM 


23 


right  than  that  of  the  United  States  in  individual  seals,  yet,  if  their  seals 
are  gone  estray  and  are  found  in  the  Alaskan  herds,  the  United  States, 
if  they  own  those  herds,  or  have  the  power  to  protect  thenj,  may  also 
lawfully  and  justly  protect  the  ostrays  against  everybody  except  the 
owner. 

Two  questions  of  right  are  presented  in  point  r»  of  Article  V^l,  viz: 
The  right  of  property  in  the  fur- seals  and  the  right  to  project  them. 
These  lights  are  not  identical  under  all  circumstances. 

The  right  to  protect  property  nniy  exist  in  one  who  neither  has  nor 
claims  to  have  any  absolute  ownership  of  the  property,  and  this  right 
has  a  peculiar  foice  and  value  on  the  higli  seas,  where  the  exposure  of 
property  to  destruction  is  great  and  the  persons  are  few  who  may  be 
able  to  protect  and  preserve  it.  The  right  to  protect  property  is  an 
element  of  its  ownership,  but  that  right  does  not  always  dcp-iid  on 
ownership.  In  this  treaty  i  vre  is  taken  to  submit  to  the  Arbitrators 
the  separate  rights  of  property  and  of  protection  as  to  the  seals  in  or 
resorting  to  Behring  Sea. 

It  must  be  admitted  that  these  questions  in  all  their  bearings  are 
entirely  new.  It  is  tlieir  novelty  Ihat  has  led  to  this  Arbitration.  If 
they  had  been  .  apublo  of  solution  under  the  rules  and  precedents  of 
international  law  it  miiSt  be  assumed  that  t\vo  great  Governments, 
e(iually  desirous  to  protect  and  preserve  the  fur-seals,  would  have 
readily  agreed  as  to  whicli  of  them  was  charged  with  or  eutftled  to  per- 
form that  duty.  In  the  absence  of  such  rules  and  precedents  of  iuier- 
national  law  it  was  wise  und  just  to  submit  these  (juescions,  as  now 
ones,  to  arbitration. 

The  fact  thaf  both  (rovcrnmcats  are  required  by  the  treaty  "to 
cooperat3  in  securing  the  adhesion  of  other  Poweril't.o  such  Regulations" 
as  shall  be  established  by  th<(  tribunal,  is  an  indication  that  is  really 
conclusi  ve  of  the  fact  that  they  both  expected  that  the  award  might  be 
based  on  new  principles  or  on  newly  stated  exceptions  to  old  rules. 
•  If  the  award  could  not  properly  be  based  on  well-settled  principles  of 
international  law,  the  reason  for  securing  the  adhesion  of  other  powers 
would  be  obvious,  whereas  that  would  be  an  unnecessary  act  if  the 
award  could  be  based  only  upon  the  concrete  principles  of  international 
law,  for  other  nations  juust  be  understood  as  knowing  and  abiding  by 
the  international  law.  Why  should  they  be  asked  to  give  theiradhesioa 
to  an  award  that  \;'ould  hold  the  United  States  and  Great  Britain  only 
to  a  (aithfal  observance  of  international  law  t 


UUKHIW 


Igi^BHBH^WWe 


24 

This  is  a  controversy  between  two  Governments  that  hold  a  pecul'ar 
relation  to  the  fur-seals  in  the  eastern  waters  of  the  North  Pacific 
Ocean.  The  peculiarities  of  that  situation  must,  largely,  control  or 
modify  the  equitable  rights  of  the  parties  in  tlieir  dealings  with  the 
subject  and  in  the  establishment  of  regulations  to  secure  their  obedi- 
ence to  the  rules  of  right  and  justice  that  pervade  all  laws. 

The  two  Governments  resorted  to  arbitration  for  the  peaceful  settle- 
ment of  their  controversy,  because  the  strict  and  unbending  rrles  of 
international  law,  or  their  meager  treatment  of  si\ch  subjects,  were  not 
equal  to  the  emergency  of  the  case,  nor  offered  a  precedent  for  the 
satisfactory  atljustment  of  the  right  claimed  by  the  United  States.  The 
settlement  of  this  matter  does  not,  necessarily,  establish  any  rule 
of  international  law,  or  declare  any  such  rule.  It  will  establish  a 
rule,  inter  partes,  whicli  they,  by  agreement,  may  rescind  at  pleasure. 
It  can  only  become  a  rule  of  international  law  by  tlie  general  adhesion 
of  other  powers. 

So,  I  hold  that  the  duty  is  included  within  the  scope  of  the  powers 
of  this  tribunal  to  determine  what  are  the  just  and  equitable  powers 
and  rights  of  the  respective  Goverliments  that  should  be  exercised 
severally,  or  concurrently,  in  maintaining  and  executing  the  avowed 
purpose  of  both,  to  protect  and  preserve  the  fur-seals.  The  question 
of  the  right  of  property,  or  protection,  lias  this  relation,  and  none 
other,  to  the  great  and  novel  subject  submitted  to  this  tribunal. 


OPINION  DELIVERED  BEFORE  THE  TRIBUNAL  OF  ARBITRATION 
BY  SENATOR  MORGAN,  JULY  *4,  1893,  AS  TO  THE  PROPER  TIME 
FOR  THE  CONSIDERATION  OF  THE  HISTORICAL  QUESTIONS 
SUBMITTED  TO  THE  TRIBUNAL. 

July  20,  18l);{,  Mr.  Morgan  s'.ib'iiitted  the  following  answers  to  points 
1,  2,  3,  and  4,  of  Article  VI  of  tlie  treaty,  for  the  consideration  of  tlie 
tribunal : 

1.  From  tlie  time  that  Russia  first  discovered  and  occupied  Bohriufr 
Sea  and  thecoastsand  islands  thereof  until  she  ceded  a  i)ortion  thereof 
to  tiie  United  States  she  claimed  the  seal  fisheries  in  IJehring  Sea, 
and  exercised  exclusively  the  right  to  the  usufruct  and  to  own  the  prod- 
ue.t  of  siu;h  seal  fisheries,  and  to  ])rotect  the  same  against  being  inter- 
fered with  in  those  waters  l)y  the  people  of  an>  other  country;  and  also 
the  exclusive  jurisdiction  that  was  found  necessary  for  those  pnrjioses; 
and  also  the  exclusive  jurisdiction  to  regulate  the  hunting  of  fur- 
seals  in  tiiose  waters  aiul  to  graut  the  right  of  hunting  them  to  her 
own  subjects. 

2.  Tiie  attitude  of  Itussia  toward  the  fur-seal  fisheries  in  Behring 
Sea,  as  des(!ribed  above,  being  known  to  Great  Britain,  she  acquiesced 
in  the  same  without  objection. 

3.  The  rights  of  Russia,  as  above  stated,  reniaine«l  unaffected  by 
the  treaty  of  182.')  between  linssia  and  Great  Britain,  and  were  held 
ami  exdnsively  exercised  by  Russia  alter  the  date  of  said  treaty  as 
they  were  Ijefore  said  date.  The  jihrase  "Pacific  Ocean,"  as  used  in 
said  treaty,  did  include  the  boily  of  water  now  known  as  Behring  Sea. 

4.  All  tiie  rights  of  Russia,  as  described  in  point  4  of  Article  VI  of 
the  treaty  of  February  2!>,  1S!)2,  passed  unimpaired  by  the  treaty  of 
March  30,  18(>7,  between  Russia  and  tlie  United  States. 

The  following  statements  .submitted  to  the  trilmnal  by  Lord  llannen 
and  by  Baron  Courcel,  respectively,  while  coinciding  in  the  same  find- 
ings as  to  the  conclusions  drawn  from  the  facts  of  history,  differ  as  to 
the  facts  upon  which  their  respective  conclusions  are  rested. 


11 


STATEMENT  BY  LOUD  HJNNEN,  SVltMlTTKl)  JULY  21,  AS  ANSWEliS  TO 
QUESTIONS  CONTAINED  IN  AliTICLE  VI  OF  THE  THE  ATT. 

To  question  1. — Russia  never  exercised  exclusive  jurisdiction  in 
Behring  Sea,  outside  the  ordinary  3-mile  limit.  In  1821  she  asserted 
exclusive  jurisdiction  over  a  part  of  Behring  Sea,  viz:  For  100  miles 
along  its  coasts,  by  imperial  ukase.  But  siie  withdrew  the  assertion 
of  jurisdiction  expressed  in  the  ukase,  on  the  demand  of  Great 
Britaiu  and  tlio  United  States,  and  never  afterwards  asserted  or  exer- 
cised such  juiisdiotion. 


'20 

Kussiii  never  exercised  exclusive  rights  in  the  seal  fisheries  in  Behring 
Hea  outside  the  aforesaid  litiiit.  In  I8lil  she  claimed,  by  the  aforesaid 
ukiise,  exclusive  rights  of  iill  kinds  (as  included  in  her  claim  of  Juris- 
diction), extending  for  100  mile."'  along  tlie  coasts  of  liehring  Bea;  but 
she  withdrew  the  assertion  on  tiie  demand  of  Great  Britain  and  the 
United  Htatcs,  and  never  afterwii'ds  asserted  or  exercised  such  rights. 

The  oidy  exclusive  right  which  Russia  subseciuently  exercised  as  to 
the  sea  was  the  ordinary  right  conceded  by  interiuitional  law  for  3 
miles  from  land. 

To  qiu;ntion  ;J. — Great  Britain  never  recognized  or  conceded  any  claims 
of  Russia  of  jurisdiction  as  to  the  seal  llslieries,  except  as  to  th(  ordi- 
nary 3  mile  limit. 

To  qnextion  3. — The  body  of  water  known  as  Behring  Sea  was  in- 
cluded in  the  phrase  "  I'aciHc  Ocean, "as used  in  the  treaty  of  1825  be- 
tween (ireat  Britain  and  Russia. 

Russia  neither  held  nor  exercised  any  rights  in  Itehring  Sea  after 
the  treaty  of  l.S2."»,  save  only  such  rights  as  were  allowed  to  her  by 
international  )uw  witliin  tiie  ordinary  3-mile  limit. 

To  question  J. — Tlnit  Russia  having  had  no  rights  as  to  jurisdiction 
or  as  to  the  seal  fisheries  in  Behring  Sea,  except  as  to  the  lands  ceded 
and  the  ordiiuiry  3 mile  limit  boidering  the  same,  it  follows  that 
no  other  rights  passed  to  the  United  States  under  the  treaty  between 
the  United  States  and  Russia  of  JVlarch  30,  18(i7. 

STATEMKST  PliKSKSriiD  liY  ItAUOS  DK  VomVEI.,  JIJA'S?,  IXAN^VJiR 

/(>  I'oiyrs  1,  2,  3,  Ay  I)  t  or  the  treaty. 

I.  The  extent  of  authority  asserted  and  exercised  by  Russia  in 
Behring  S'"i,  previously  to  the  negf)tiations  which  led  t*)the  conclusion 
of  the  treaty  of  Fcbruaiy  10-28,  182."),  between  Russia  and  Great 
Britain,  does  not  appear  with  historical  certainty,  but  it  results  from 
a  dispatch  of  Count  Nesselrode  to  Count  Lieven,  in  date  of  St.  I'etei's- 
burg,  the  2(itii  of  June,  1823,  cominunieated  to  the  London  cabinet  «)n 
the  tlth  of  August  ensuing,  that  the  surveillance  of  the  commanders 
of  the  Imperial  Russian  navy  was  to  be  exercised  henceforth,  under 
their  instructions,  in  tiie  region  of  Behring  Hea  over  an  extent  of  water 
that  should  be  witliin  cannon  shot  from  shore;  and  although  those 
instructions  were  stated  as  being  provisional  in  the  dispatch  of  Count 
Nesselrode,  it  does  not  appear  tliat  since  tiiat  time  ni)  to  the  tinui  of 
the  cession  of  Alaska  to  the  Unit<'d  States  the  linjierial  Gciyernment 
of  Russia  exi'icised  or  asserted  in  Behring  Sea,  outside  of  the  limit 
aforesaid,  any  exclusive  jurisdiction  either  of  a  general  character  or  in 
connection  with  the  s(>al  fisheries. 

II.  Great  Britain  has  not  recognized  or  conceded  any  jurisdiction  of 
Russia  as  to  seal  fishery  beyond  tlie  limit  of  territoiial  waters. 

III.  The  body  of  water  now  known  as  the  Behring  Sea  was  included 
in  the  phrase  "Pacific  Gcean,"  as  used  in  the  treaty  of  1825  between 
Great  Britain  and  Russia,  f^iid  after  said  treaty  Russia  neither  held 
nor  exercised  in  the  Behring  Sea,  outside  of  territorial  waters,  any 
exclusive  rights. 

IV.  All  the  rights  of  Russia  as  to  the  Jurisdiction  and  as  to  the  seal 
fisheries  in  Behring  Sea  east  of  the  water  boundary  in  the  treaty 
between  United  States  and  Russia  of  the  30th  of  March,  1867,  passed 
unimpaired  •'    the  United  States  under  that  treaty. 


.1 


i 


<l> 


27 

These  variances,  if  not  disagreements,  as  to  tbe  historical  inquiries 
submitted  to  the  tribunal  in  the  first  four  points  of  Article  VI  of  the 
treaty,  in  my  judgment,  furnish  a  conclusive  reason  in  sujjport  of  a 
motion  1  intend  to  submit  for  the  postponement  of  a  vote  on  points  1, 
2,  3,  and  4  in  Article  VI  of  the  treaty,  until  the  tribunal  sliall  have 
reached  a  conclusion  as  to  the  ri{{;lits  of  the  United  States,  as  to  prop- 
erty and  protection  in  the  fur-seals. 

On  July  22,  when  the  subject  of  the  answers  to  be  made  to  points  Ij 
2,  .'J,  4,  of  Article  V 1  of  the  treaty,  was  under  consideration,  I  had  the 
honor  of  submitting  the  following  motion  and  remarks: 

"  I  move  that  no  decision  be  made  upon  the  first  four  points  in  Article 
VI  of  tlie  treaty,  at  this  time,  but  that  this  historical  matter  be  laid 
aside  until  the  tribunal  has  considered  and  decided  the  legal  questions 
submitted  for  award  in  tlie  treaty,  in  whatever  order  may  l)e  adopted. 
I  will  state  the  gi-ounds  for  this  motion: 

'*  Prior  to  March  .'10,  1807,  Russia  owned  all  the  coasts  and  islands 
washed  by  the  waters  of  Bering  Sea,  and  yet  owns  all  west  of  the 
water  boundary  fixed  in  her  treaty  of  that  date  with  the  United 
States. 

"Kussia  has  the  same  rights  of  Jurisdiction  in  the  western  portion  of 
Bering  Sea  that  the  United  States  has  in  the  eastern  portion.  If  we 
could  reach  an  agreement  as  to  what  tliose  rights  are  it  would  be  far 
better,  if  it  was  possible,  that  it  sliould  not  be  formulated  intoan  award 
in  the  absentee  of  liussiii  from  tliiy  hearing. 

''Kussia  alone  can  state  wha.  exclusive  jurisdiction  she  asserted  and 
exercised  and  what  exclusive  rights  in  the  seal  fisheries  she  asserted 
and  exercised  in  the  sea  now  known  as  Bering  Sea  ])r'or  to  1825,  or 
since  tliat  date  and  until  18(>7,  so  far  as  such  statements  can  attetrt  or 
describe  her  attitude  as  a  sovereign  with  reference  to  that  sea  and 
the  suiToimding  coasts  and  the  islands  washed  by  its  waters.  Tlie^e 
matters  rest  in  intention  and  are  established  by  assertion  and  are 
proven,  where  i)roof  is  needed,  by  the  exercise  of  nuthority  over 
Behring  Sea  and  its  islands  and  surronnding  coasts,  and,  where  the 
sovereign  rights  of  Russia  are  challenged  and  put  upon  trial,  Russia 
should  be  present  if  the  decision  is  to  have  any  bearing,  immediate  or 
remote,  upon  her  rights  or  any  effect  on  her  sensibilities,  so  important 
to  be  regarded  in  the  comity  of  nations. 

"Russia  has  retained  rights  and  interests  in  the  fur-seals  and  fisheries 
of  every  kind  in  the  western  part  of  Bering  Sea  t*;id  on  the  coaste  aad 


'"  i 


^  .  28 

islands  thereof,  which  are  the  Siiine  as  to  origin,  assertion,  and  exer- 
cise, and  as  to  all  sovereign  powers,  as  tliose  that  are  claimed  and 
exercised  by  the  United  States,  llussia  is  still  {guarding  her  rights 
in  the  form  and  t4>  the  extent  that  she  is  making  a  claim  or  assertion 
of  tiiem  with  sedulous  care,  and  Great  Britain  is  actively  engaged  in 
tresiting  with  her  for  the  detinitioii  and  settlement  of  those  rights. 
VVliile  treating  with  liussia  she  is  arbitrating  with  the  United  States 
about  the  identical  questions  that  equally  concern  both  countries." 

A  main  feature  that  seems  to  control  the  opinions  of  the  Arbitrators 
in  deternjining  what  are  the  rights  of  the  United  States  is  the  action 
of  llussia,  its  conduct  in  fact,  as  it  is  alleged, ^ro  aiid  c'««,  in  first  assert- 
ing, and  then  abajuloning  the  assertion  that  Bering  Sea  is  mare 
eUtuHum;  in  issuing  lier  ukase  in  1799  and  abandoning  some  of  its  vital 
features  and  adding  others  by  a  later  ukase  in  1821;  in  wiping  out 
all  of  the  pretensions  set  up  in  both  ukases  by  the  treaty  conchuled 
with  the  United  States  in  1824  and  with  (Ireat  Britain  in  1825;  in 
instructing  her  minister  at  Washington  to  deliver  to  the  United  States 
an  explanatory  protocol,  defining  more  clearly  her  construction  of  the 
treatyof  1824,  which  instructions  were  violated  under  imiwessions  made 
upon  him  by  the  Secretary  of  State,  and,  after  this  was  done,  proceeding 
under  the  text  of  tlie  treaty  as  if  no  qualifying  statement  would  ever 
be  relied  upon  by  Russia;  and  in  renevving  her  charter  to  the  Russian 
American  Company  in  1831  witli  the  same  exclusive  privileges  as  were 
granted  to  it  in  1821.  In  the  opinions  of  the  arbitrators,  now  delivered, 
these  questions,  so  closely  related  to  the  conduct  of  Russia  for  a  period 
little  short  of  a  century,  are  dealt  with  and  are  to  be  decided  by  this 
tribunal. 

Whether  Russia  had  any  right  under  international  law,  or  any  other 
la^\  0  assert  and  exercise  exclusive  rights  or  exclusive  jurisdiction  in 
B  ug  Sea,  can  not  alter  the  fa(!t  that  she  did,  o:  did  not,  assert  and 
exi^i'  e  them.  Neither  can  these  facts  be  altered  by  Russia's  con- 
structive modification  or  abandonment  of  the  attitude  she  had  previ- 
ously lield  to  these  subjects.  Tlie  only  «|uestion  is,  what  did  Russia 
intend  to  assert  iu  respect  to  these  matters,  and  whether  she  executed 
that  intention  in  dealing  with  these  subjects,  in  the  opinions  deliv- 
ered, strict  history,  as  to  facts,  seems  to  have  received  a  coloring  of 
legal  and  diplomatic  opinion  in  the  eft'ort  to  ascertain  what  Rtissia  did 
and  intended  to  do,  by  first  ascertaining  what  it  was  her  duty  to  do 
under  the  international  law  and  the  comity  of  nations. 


* 


-T- 


29 

In  tny  judgment,  if  Russia  chose  to  violate  the  internatioTial  law  and 
to  repudiate  all  comity,  lier  attitude  was  not  altered  becaust'  it  may 
have  exposi^d  her  to  uiifrieudly  criticism  i)rovt>kcd  by  the  pres8u^^  of 
iwlverse  interests  on  Ihe  part  of  the  Unite<l  States  or  (Ireat  Britain. 
.Vt  all  events,  any  sucli  departures  of  tlie  tribunal  from  the  strict  duty 
of  stating  this  history,  confined  to  the  sulyect  of  fur-seal  tisheries  in 
IJering  Sea,  witliout  reference,  deduction,  <;onjecture,  oi)inion,  gloss, 
or  comment,  will  only  provoke  the  prompt  dissent  of  Russia,  or  will 
cause  Great  Britain  and  the  United  States,  whenever  theii'  policies  so 
re(piire,  to  declaie  tliat  our  decision  is  not  \\  .ranted  by  the  strict 
miture  of  tlie  inquiry  siiliniitted  to  »'s,  and  is  obiter  <Uc1um. 

I  consider  it  a  happy  circumstance  that  in  the  opinions  delivered 
on  this  subject  there  is  sucli  contrariety  and  conflict  that,  if  tiiey  are 
adhered  to,  we  are  obliged  to  show  that  a  majority  of  the  tribunal 
are  unable  to  agree  upon  an  identical  answer  as  to  the  historical  facts 
submitted  for  incpiiry  and  decision  in  the  first  point  and  in  the  last 
clause  of  the  third  point  of  Article  VI. 

And  inasmuch  as  an  agreement  of  a  majority  of  tlie  tribunal  as  to 
the  historical  facts  so  recpiired  to  be  stated  is  the  essential  basis  of 
the  decision  of  the  other  matters  i)resenti.d  in  points  2  and  3,  I  resi)ect- 
fully  insist  that  we  have  not  been  able  to  reach  a  decision  upon  them, 
and  for  this  reason  a  majority  of  the  tribunal  can  not  actually  decide  the 
inquiry  stated  in  points  I,  2,  and  3  of  Article  VI . 

The  imitters  presented  for  historical  incpiiry  and  decision  in  points 
1,  2,  3,  and  4,  of  Article  VI,  relate  only  to  a  derivative  right  of  the 
United  States  to  the  fur-seal  fisheries,  as  they  are  ternu'd,  in  Bering 
Sea,  and  the  exclusive  jurisdiction  over  that  sea  to  control  and  protc<;t 
such  tisheries.  These  (juestions  are  pres(^nttMl  and  nniy  be  considered 
and  decided,  \\\)0\\  the  facts  and  law  that  must  control  our  decision, 
under  the  submission  of  questions  of  a  judicial  nature,  in  point  5,  of 
Article  VI,  and  in  Articles  1  and  VII  of  the  treaty.  In  so  consider- 
ing and  deciding  them  we  need  find  no  occasion  to  express,  in  our 
award,  any  conclusions  that  may  impinge  upon  any  right  of  liussia, 
or  call  it  in  question,  or  that  may  unnecessarily  wound  her  sensibilities. 
It  may  also  turn  out  that  a  final  award  will  be  reached  as  to  the 
rights  of  property  and  protection  clainied  by  the  United  States,  or  the 
rights  of  pelagic  sealing  claiujeu  by  Clreat  Britain,  based  upon  consid- 
erations entirely  apart  from  auy  derivative  rights  of  the  United  States 
that  may  have  come  to  that  Government  from  Russia. 


1 


30 

At  all  events,  the  disagreements  already  developed  among  the  mem- 
bers of  the  tribunal,  as  to  the  matters  with  which  the  interests  of  Russia 
iue  so  closcl^bound  up,  admonish  us  that  we  should  lay  this  matter 
aside  until  we  have  cousidorod  the  subject  before  us  under  Article  I, 
and  point  3  in  Article  VI,  Article  VII,  and  any  others  that  open  up  an 
inquiry  into  the  Juridical  features  of  the  questions  that  are  submitted 
to  the  tribunal. 

The  opinion  and  sunnriary  of  facts  presented  by  Lord  Ilanneu  is  con- 
curred in  by  Sir  John  Tliompsoii.  The  opinion  of  Marquis  Visconti 
Venosta  is  concurred  in  by  Mr.  Gram,  These  opinions,  whatever  the 
conclusions  of  fact  to  be  drawn  from  them  may  be,  are  not  identical 
in  statement  or  reasoning.  In  the  absence  of  copies  of  these  opin- 
ions, I  am  not  able  now  to  compare  and  contrast  them  as  I  would  feel 
it  my  privilege  to  do.  These  opinions  deal  witli  the  rights  and  con- 
<luct  of  Kussia  in  different  lights.  1  do  not  say  that  they  purposely 
<lcal  with  the  present  rights  of  Eussia,  but  that  effect  is  unavoidable 
if  any  weight  is  to  attach  to  our  findings. 

Four  Arbitrators  will  agree  upon  these  historical  facts,  if  four 
agree  to  Lord  Ilannen's  syllabus,  while  three  uissent.  This  is  not  a 
secure  basis  of  historical  decision  of  facts  tluit  concern  a  living  and 
great  nation  and  her  riglits,  in  nuittera  that  are  now  the  subject  of  her 
anxious  care  tliat  are  under  diplomatic  consi<leration  in  correspond- 
ence with  Great  Britain.  An  opposing  view  of  this  history,  presented 
by  me,  has  tlie  con<;urrence  of  Baron  de  Courcel  and  Mr.  Justice  Har- 
lan, to  a  considerable  extent.  Thee  is  a  divided  opinion  in  several 
directions,  and  this  chapter  of  history,  if  it  is  written,  will  go  forth 
encumbered  with  serious  doubts  and  objections. 

After  further  discussion,  the  answers  to  be  made  to  the  first  four 
points  in  Article  VI  of  the  treaty  were  informally  laid  aside  to  enable 
Mr.  Justice  Harlan  to  formulate  his  answers. 


^^l 


«» 


THE  TRIBUNAL.  IIAVINCJ  AGKEEl)  TO  CONSIDER  THE  EIRST  EOUB 
POINTS  STATED  IN  ARTICLE  VI  OF  THE  TREATY,  IN  CONNECTION, 
AS  A  GROUP  OF  QUESTIONS,  SENATOR  MOROAN  SUBMITTED  1118 
VIEWS  OP  THE  CLAIMS  OF  RUSSIA,  AND  OF  THE  UNITED  STATES 
DERIVED  FROM  RUSSIA,  UNDER  THE  TREATY  OF  l.S(}7,  AS  THE  SAME 
ABE  PROPOUNDED  IN  THE  TREATY  OF  181»2  IN  THE  WORDS  FOLLOW- 
ING: 

1.  Whatexcliisive  Jurindiction  in  the  sea  now  known  hh  Bering  Sea, 
and  what  exclusive  rights  in  the  seal  tisheries  tlierein  did  Kussia  as- 
sert and  exercise  prior  and  up  to  tlie  time  of  the  cession  of  Ahiska  to 
the  United  States? 

2.  How  far  were  those  claims  of  jnrisdiclion  as  to  the  seal  fislieries 
recognized  and  conceded  by  (Jreat  liiitain? 

'.i.  Was  tlie  body  of  water  now  known  as  the  Behring  Sea  included  in 
the  phrase  "Pacific  Ocean,"  as  used  in  the  treaty  of  1H25  between 
Great  liritain  and  i{us8ia;  and  wliat  rights,  if  any,  in  the  Behring 
Sea  were  held  and  exclusively  exercised  by  Russia  after  said  treaty? 

4.  Did  not  all  tlie  rights  of  Russia  as  to  jurisdiction  and  as  t<»  the 
seal  fisheries  in  Behring  Sea  east  of  the  water  boundary  in  the  treaty 
between  the  United  States  and  Russia  of  the  .'Wth  March,  18G7,  iiass 
unimpaired  to  the  United  States  under  tliat  treaty? 

As  the  tribunal  seems  to  agree  unanimously  in  giving  an  affirma- 
tive answer  to  the  fourth  point  I  will  not  discuss  it. 

A  like  unanimity  seems  to  exist  as  to  the  answer  to  the  first  inquiry 
under  question  ii,  which  makes  it  unnecessary  that  I  should  comn  ent 
upon  that  question. 

All  the  questions  submitted  under  the  four  points  x»f  Article  VI  are 
historical  rather  than  .judicial  in  their  character  as  to  the  facts  to  be 
ascertained  and  as  to  the  conclusions  to  be  based  upon  them,  excejit 
the  question  presented  in  the  second  point,  which  I  consider  a  mixed 
(luestion  of  law  and  fact.  It  is  upon  this  view  of  the  duty  of  the 
tribunal  in  tiie  consideration  of  these  questions  that  my  oiiinions  are 
rested. 

The  situation  of  the  western  and  northwestern  coast  of  North  Amei*- 
ica  in  1824  was  practically  that  of  an  unoccupied  and  uninhabited 
country  to  the  north  of  Puget  Sound.  A  few  scattered  tribes  of 
Indians  inhabited  the  vast  reach  of  coast,  from  Sau  Francisco  to  the 

81 


82 


frozeu  ocean,  not  less  than  4,000  miles  in  length.  The  claims  of 
Great  Britain,  Russia,  Spain,  and  the  United  States  to  certain 
boiuularies  alon<^  this  (jreat  reach  were  based  on  alleged  discoveries 
and  o(;(uipation,  all  of  the  most  indetlnitc  character,  and  all  disputed, 
except  that  liussia  held  and  occupied  the  islands  and  coasts  on  all 
sides  of  "Bering  Hea  and  this  claim  was  not  disputed  by  any  country. 
This  claim  was  thus  hchl  and  recognized  for  many  years  before  1824, 
remihing  back  to  the  discovery  and  exploration  of  Bering  Sea. 

The  interest  of  Itussia  in  these  wild  and  inhos])itable  regions  was 
not  agricultural,  for  they  are  unfit  for  such  pursuits.  It  was  not  an 
ambitious  desire  for  territorial  aggrandizement  on  the  American  con- 
tinent, for  liussia  took  no  steps  to  increase  her  population  there 
beyond  the  numbers  necessary  to  secure  and  handle  the  fur  trade;  and 
when  she  found  it  inconvenient  to  incur  the  expense  of  governing  a 
colony  so  far  away  from  her  capital,  that  yielded  so  small  a  revenue, 
she  sold  all  her  possessions  and  dominion  in  that  region  east  of  170° 
of  west  longitude  to  a  powc'r  tlmt  had  always  been  friendly  and  was 
not  in  any  sense  lier  rival. 

Fiohing  was  not  so  profitable  in  liering  Sea  as  to  induce  Ushermento 
encounter  the  unpleasant  and  short  summer  season  when  it  was  prac- 
ticable to  fish  there  and  establish  any  regular  business  in  taking  fish. 
The  markets  were  too  distant  to  justify  them  to  transport  their  catch 
fresh  on  ice,  and  there  was  not  sufficient  sunshine  to  enable  them  to 
properly  cure  the  fisli.  In  consequence  the  business  of  finhing  was 
never  permanently  established  in  Bering  Sea,  and  is  not  until  this  time. 

14ussia  directed  the  energy  and  capital  of  her  people  to  the  collection 
of  furs  as  the  only  really  valuable  industry  in  that  region,  and  created 
monopolies  in  their  favor  and  gave  them  large  i)owers  of  legislation, 
all  directed  to  the  same  end,  and  all  protected  by  lier  naval  power  in  a 
thoroughly  systematic  and  eU'ectual  way. 

These  privileges  were  retained  and  exercised  exclusively  by  llus- 
sian  subjects  under  her  laws  until  the  Alaskan  region  was  sold  to  the 
United  States  in  1807,  with  all  the  rights  and  dominion  that  Russia 
had  therein.  In  order  to  extinguish  in  that  region  all  claim  of  rights 
existing  under  Russian  authority  it  was  stipulated  in  the  treaty  of 
cession  that  all  foinier  grants  of  exclusive  privileges  to  any  of  the 
Russian  subjects  should  be  abrogated. 

It  was  in  pursuance  of  the  same  authority  and  manifestly  for  these 
reasons  that  the  right  of  trading  with  the  natives  and  of  taking  and 


d 


i 


33 


)f 
n 

8 


J0^ 


collecting  furs  was  withheld  from  tlie  couceHsions  made  by  HuHHia  to 
Great  Britain  and  tlie  I'niti'd  Htates  in  is^t  and  l«2r». 

In  arcurdancc  with  wliat  was  tlien  tin",  prafticc  of  thf  K^'at  powers  us 
U\  the  ri^ht  of  di'claiinjjftlio closure  of  extonsivc  areas  (»f  sea  as  territo- 
rial appurtenances,  Kussiachiinied  tliat  Melirin^rBea  was  marc  liatoiinn, 
and  in  practice  this  claim  was  carried  into  ettcct  as  io  the  control  of 
the  fur  trade. 

Her  people  did  not  hunt  whales  at  that  period  to  any  great  exteut, 
nor  did  they  condiu't  tislieries /«»•  comiiicrcial  purpoHcu.  It  was  the 
(huible  purpose  of  protecting  her  fnr  trade  and  yet  permitting  whaling 
and  other  tisiiing  witiiiii  safe  limits  that  caused  tlie  Kmperor,  Alexan- 
der I,  to  issue  tlio  ukase  of  1821.  The  whalers  and  fishermen  had 
begun  to  deal  with  the;  niitives  for  furs  and  to  cat<'h  seals  in  Behring 
Sea.  Knssia  resented  this  as  a  wrong  and  an  invasion  of  her  territorial 
rights,  ami  the  ukase  wasJssued  to  prevent  its  in«'rease  or  continuance. 

The  ordinary  Ihree mile  limit  was  iis  fully  lecognized  then  as  it  has 
been  since  that  time,  generally,  as  to  coasts  boi'dering  the  open  ocean, 
or  even  more  fully  recognized.  But  Russia  ]»aid  no  attention  to  it  in 
Bering  Sea,  and  for  her  own  security  in  respe«!t  (»f  her  only  industry 
in  those  waters — the  fni'  trade — and  to  keep  down  insurrection,  she 
fixed  ii  line  of  pndiibition  to  navigators  at  UM  Italian  miles  from  her 
coasts.  In  doing  this,  and  in  opening  liering  8ea  to  whalers  and 
fishermen  ami  other  navigat(U-s  in  the  parts  not  included  in  the  100- 
mile  limit,  she  asserted*and  exercised  an  ex(!epti<mal  .jurisdiction  over 
that  sea  and  ('laimed  thif^-  her  power  extended  over  the  entire  sea, 
but  waiv<Ml  her  rights  at  the  distiince  of  over  100  miles  from  the  coasts. 

lu  17!)!>  the  intonist  of  Uussia  and  her  subjects  in  the  fur  trade  had 
become  so  important  that  on  July  S,  1700,  nearly  twenty-iive  years 
before  the  date  of  the  treaty  with  the  ITnited  States  of  Ai)ril,  5-17, 
1824,  the  Kmperor  Paul  issued  his  ukase,  in  which  he  declared 
that— 

The  benefits  and  advantages  resulting  to  our  Empire  from  hunting 
and  trading  carried  on  by  our  loyal  subjects  in  the  northeastern  seas 
and  along  tlie  coasts  of  Ameritia  have  attracted  our  Imperial  attention 
and  consideration;  therefore,  having  taken  under  our  iinmediate  pro- 
tection a  comitany  organized  for  the  above-named  purpose  of  carrying 
(Ml  hunting  and  trading,  we  allow  it  to  assume  the  a])pellation  of 
"Uussian  American  Company,  operating  under  our  highest  protection;" 
and  for  the  purpose  of  aiding  tiic  company  in  its  enterprises, -we  allow 
the  commanders  of  our  land  and  sea  forces  to  employ  said  forces  in  the 
company's  aid  if  occasion  requires  it,  while  for  further  relief  and  assist- 
ance of  said  ctuupany,  and  having  examined  their  rules  and  regulations, 
11495  M 3 


84 

wo  herfiby  decliiro  it  to  be  our  lii^licHt  Iiiiperinl  will  to  fn'a»t  to  this 
coMipiitiy  tor  u  iM'iiod  of  t\v«'iity  years  tlio  following  riglitH  and  privi- 
lepeH : 

I.  By  the  riglit  of  diHj'ovcry  in  past  times  by  ItnsHian  navigators  of 
tlie  northwestern  part  of  Anieriea,  beginning  from  the  tifty  llfth  degree 
of  north  latitndt^  and  of  the  chain  of  islands  extending  from  Kam- 
txrhatka  to  the  north  to  Anieriea,  and  sonthward  to  Japan,  and  by  right 
of  possession  of  the  same  by  Knssia  we  most  graeionsly  luMniit  the 
eompany  to  have  the  list;  of  all  hunting  grounds  and  establishmonts 
now  existing  <mi  the  northeastern  eoast  of  Anieriea,  from  the  above- 
mentioued  fifty  lifth  degree  to  Bering  Strait,  and  also  on  the  Aleutian, 
Kurile,  and  other  islands  sifiiated  in  the  Northeastern  Oeeaii. 

There  c<mld  not  have  been  a  imne  distinet  assertion  of  rights  of  sbv- 
ereignty  and  dominion,  in  virtue  of  discovery  and  possession,  than  is 
made  in  this  State  paper.  Neither  could  it  have  been  nau'e  formally, 
or  conijiletely  stated  that  the  sovereign  will  and  power  of  Russia  was 
exerted  by  this  lin]>erial  ukase  to  secure  to  the  "  Kiissiaii- American  t'oni- 
pany  under  (Russia's)  higliest  protect  ion"  "th»i  benelits  and  advan- 
tages resulting  *  #  »  (it,!,,  ti,,,  hunting  and  trading  eairi«'d 
on  *  •  *  tH //»;  n«)7/»'rt«/e/"»  wrt«  and  along  th(!  coasts  of  Anier- 
iea." There  can  be  no  reasonable  doubt  that  this  ukase  covered  Bering 
Sea  and  all  hunting  and  trading  in  those  waters.  The  rights  conferred 
by  this  ukase  were  supixuted  by  the  power  of  the  army  and  navy  of 
Uussia,  pledged  for  that  purpose. 

The  exclusive  character  of  thest;  rights,  as  to  all  tiie  woi  l-i,  is  stated 
in  Article  X  of  the  regulations  (unbodied  in  tliis  iikaso.  m,  kAU  vs: 

•  X.  The  exclusive  right  is  most  graciously 'granted  t<»  l^i- company 
for  a  period  of  twenty  y<iiis,  U)  use  and  enj^»y,  in  the  islxiv  j-described 
extent  of  country  and  islands,  all  profits  and  advantages  derived  from 
hunting,  trade,  industries,  and  discovery  of  new  lands,  prohibiting  the 
enjoyment  of  these  profits  and  a<lvaiitag»'s  not  only  to  those  who 
would  wish  to  sail  to  those  (lountries  on  their  own  account,  but  to  all 
former  hunters  and  trapjjers  who  have  been* engaged  in  this  trade  and 
have  their  vessels  and  furs  at  those  jilaces;  and  otiier  companies  whicu 
may  have  been  formed  will  not  be  allowed  to  continue  their  business 
unless  they  unite  with  the  iiresent  eomiiany  with  their  free  consent, 
but  such  private  companies  or  traders  as  liave  their  vessels  in  those 
regions  can  eitl<«»r  sell  their,  property  or,  with  the  company's  consent, 
remain  until  they  liave  obtained  a  (Mirgo,  but  no  longer  tlian  is  retjuired 
for  the  loading  and  return  of  their  vessel;  and  after  that  nobody  will 
have  any  ])rivileges  but  this  one  company,  which  will  be  protected  in 
the  enjoyment  of  all  the  rights  mentioned. 

The  rights  thus  exclusively  granted  relate  to  hunting  and  tradinp. 
The  rights  of  free  navigation  and  of  fishing  are  not  granted  exclusively 
to  this  company,  but  "  all  profits  and  advantages  derived  from  hunting, 
trade,  industries,  and  discoyeries  of  new  lands"  are  so  granted. 


M-^!f:..«e-!!t»^;y.at'Aij^iiMJi.AJKijia'Mi;.i.iti'i'! 


85 

l^liat  Mi«  privilefi:*^  of  huiitiiig  riir-boariiif?  aiiiinulM  in  Wut  northoHMt^ni 
Hca,  uihI  on  l:in(l,  was  "tlu;t^\«;luHivc  right''  of  tlio  gioatuHt  ini]>oi-tiMicu 
tinit  waH  giauteil  in  tliiH  ukase  is  inadu  t'ntin^ly  clear  in  tliu  prohibi- 
tion stated  in  Article  X  in  these  words,  ''prohil)iting  the  enJoynuMit  of 
these  profits  and  advantages  not  (Hily  t(»  those  who  would  wish  to  sail 
to  tlnise  eonntries  on  their  own  aeuonnt,  but  to  all  t'ornier  /iiiiih'tii  ami 
tfitftjtvin  who  have  Iwen  engaged  in  this  trade  «)(</  hare  thtir  r<HHeh  and 
turs  at  those  places." 

This  eoiupany  conducted  its  o|»erations  in  reference  to  the  fur  trade 
at  great  cost  and  with  much  pi.,iit  during  the  twenty  years  of  its  char- 
tered existence,  and  then  aitplied  to  Itussia  for  a  renewal  of  its  charter 
for  an  additional  term  of  twenty  years. 

The  ukase  of  I7'.K)  irax  J'oiinil  ^•  hi-  iiixiilficlint  for  lite  proteetion  of 
the  pririleffeH  (jrunled  hi/  it,  and  an  additional  ukase  was  jiecessary 
f(U'  that  iHirpose,  which  was  issued  Heptember  4,  1.S21.  There  could 
be  no  need  to  atjaiii  UHsert  the  riyht  of  litim'm  to  fp-arit  the  ereluKive 
prii'ih'i/eto  ilHHiihjeels  of'-hiiutiniiamt  trddiiKj.^^  "which  had  been  carried 
on  by  (her)  loyal  subjects  in  the  northeastern  seas  and  along  the  coasts 
of  Anieric-a"  for  nniuy  years  anterior  to  I79!>,  and  for  a  (juarter  of 
a  century  since  that  date;  but  Kussia,  ihrough  its  Kmperor  and 
directing  senate,  in  the  most  solemn  manner,  declared  that  the  free 
right  of  noriffatiim,  whieli  was  not  rentr ivied  hy  the  vkane  of  17!>!>,  had 
been  abused,  to  the  detriim'ut  of  *'  the  trade  of  our  snbje(!ts  on  the 
Aleutian  Islands  and  on  the  northwest  <'oast  of  Americra,  appertaining 
unto  llussia." 

This  necessity  for  an  additional  ukase  couul  not  be  expressed  more 
distinctly,  or  more  tersely,  than  it  is  in  the  terms  of  that  ukase,  wiuch 
are  as  follows : 

The  directing  senate  maketli  known  unto  all  men :  Whereas  in  an 
edict  of  His  Imperial  Majesty,  issued  to  the  direc^ting  senate  on  the 
4th  day  of  September,  and  signed  by  His  Imperial  Majesty's  own  hand, 
it  is  thus  expressed: 

Observing  from  reports  submitted  to  us  that  the  trade  of  our  sub- 
jects on  the  Aleutian  Islands  and  ou  tlui  northwest  coast  «>f  Ainerica 
appertaining  unto  Russia,  is  8ubje«;ted,  because  of  secret  and  illicit 
iratlic,  to  oppression  and  impediments,  and  Hnding  that  the  ))rincipal 
cause  of  these  difficulties  is  the  want  of  rules  establishing  the  bounda- 
ries for  navigation  along  these  coasts,  and  the  order  of  naval  commu- 
nication as  well  in  these  places  as  on  the  whole  of  the  eastern  coast  of 
Siberia  and  the  Kurile  Islands,  we  have  deemed  it  necesary  to  deter- 
mine these  (tomnumications  by  specific  regulations,  which  are  hereto 
attached. 

In  forwarding  these  regulations  to  th^directing  senate  we  command 
that  the  same  be  published  for  universal  information,  and  that  the 
proper  measures  be  takeu  to  t;arry  them  into  execution. 


.iT.uii".;*^^ 


mmmm 


mm 


«8 

That  ukase  is  directed  to  the  suppression  of  a  "  secret  and  illicit 
traffic"  and  "oppression  and  iinpedii<»'*nts"  to  which  the  trade  of  Rus- 
sian subjects  on  the  A'l'utiaii  Islands  on  tiie  northwest  coast  of 
Aiueric*  was  subiected.  "The  i)rin('ii»al  cause  of  these  difticnlties"  is 
stated  in  the  ukase.  It  "  is  the  want  of  rules  establishing  boundaries 
for  navigation  along  these  coasts,"  not  through  Bering  Sea,  "  and  the 
order  of  naval  coninmnication  as  well  in  these  places  as  on  the  whole 
of  the  eastern  coasts  (»f  Siberia  and  the  KurUe  Islands." 

In  renewing  the  (charter  of  the  liussian-Anierican  Company  in  1821, 
all  these  abuses  were  de.ilt  with  in  rhe  ukase,  published  on  September 
7, 1821.  That  was  a  coniidete  code  of  la»v8  consisting  of  G3  sections, 
regulating  and  setting  apart,  as  an  exclusive  and  additional  right 
"granted  to  Russian  subjects"  of  "the  pursuit  of  commerce,  whaling, 
end  Jishery,  and  all  other  itidustries  on  all  island'^,  ports,  and  gulfs, 
including  the  whole  of  the  northwest  coast  of  ''.iPdrica,"  from  Bering 
Straits  to  the  51°  »if  north  latitude,  and  4r)0  50'  .ni  the  Siberian  side  of 
Bering  Sea. 

In  this  ukase,  following  this  exclusive  grant  of  rights  and  privileges 
to  Russian  8ubje<!ts,  section  2 ordains  that: 

It  is  therefore  prohibited  to  all  foreign  vessels  not  only  to  land  on 
the  coasts  and  islands  belonging  t<)  Russia  ai?  stated  above,  but  also 
to  approach  them  within  less  than  a  liundred  Itiilian  miles.  The  trans- 
gressor's vessel  is  subject  to  (rontiscation,  along  with  the  whole  cargo. 

Tlie  second  charter  of  the  l{ussian-Ameri(!an  Company  was  based 
upon  the  ukase  of  1821,  which  was  based  upon  and  amended  the  ukase 
of  1799.    The  first  and  second  articles  of  that  charter  are  as  follows: 

1. 

The  company  established  for  carrying  on  industriea^flud  tr.ade  on  the 
mainland  of  Northwest  Anx'iica,  on  tlie  Aleutian  and  on  the  Kurile 
Islands  remains,  as  heretofore,  under  the  higiiest  protection  of  His 
Imperial  Msyesty. 

n. 


It  enjoys  the  privilege  m  .,nnting  and  (ishing,  to  the  exclusion  of  all 
other  Russian  or  foreign  Kubjects  throughdut  tll<^  territories  long  sin<!e 
in  the  possession  of  Knssia  on  the  coasts  .»f  Northwest  America,  begin- 
ning at  the  uoithern  point  of  the  Island  of  Vancouver,  in  laiitiule  51"^ 
north,  i^iid  extending  to  Beiing  Strait  and  beyond,  as  well  as  on  all 
islands  adjoininj:  tlu^  <'oast  and  all  tiioSe  situated  between  this  coast 
and  theeastern  s'loreof  Siberia,  as  well  as  on  the  Kurile  Islands,  where 
the  company  has  engaged  in  hunting,  down  to  the  south  cape  of  the 
Island  Urapa,  in  latitude  45°  50'. 


37 

The  term  "Imuting:"  in  Article  II  necessarily  includes  the  same 
"hunting  *  •  •  carried  on  by  our  iuytil  subjects /»  Mt- nortAf^s^frn 
seas  and  along  the  coasts  of  America"  that  is  reserved, exclusively,  to 
Russian  subjects  by  the  ukase  of  179i>. 

The  right  of  tisliing  is  not  mentioned  specitically  in  the  ukase  of 
1799,  for  the  leason,  doubtless,  that  it  then  had  no  importance.  Jt  is 
specifically  mentioned  in  the  ukase  of  18U1,  and  is  therein  classed  as 
follows,  viz,  "  the  pursuits  of  commerce,  whaling,  and  fishery,  and  of 
all  other  industry  on  all  islands,  i>orts,  and  gulfs." 

In  the  ukase  of  1821  all  these  pursuits,  including  hunting  in  the 
northeastern  seas,  are  embraced  ir  "t'le  trade  of  <mr  subjects  hvho  are) 
on  the  Aleutian  Islands  and  on  the  Northwest  coast  of  America  apper- 
tainicg  to  Russia,"  are  covered  by  the  protecting  power  of  the  Russian 
Empire.  Ami  in  order  to  make  t'le  ])rotection  effectual  the  right  of 
navigation  was  in  that  ukase  restricted  to  100  miles  from  the  coasts,  etc. 

In  1824  the  United  States  held  the  S;;ani8li  title  to  its  possessions 
on  the  racitic  coast  north  of  latitude  42°.  and  had  no  other  substan- 
tial claim  to  that  coast.  In  the  treaty  of  1824  between  the  United 
States  and  Russia  nothing  was  settled  that  had  not  been  claimed  by 
Russia  in  these  two  ukases  of  1799  and  1821,  and  in  Article  I  of  the 
treaty  (the  rights  of)  "  the  respecti"e  citizens  and  subjet^ts  of  the  High 
Contracting  Towers"  are  "neither  disturbed  iu)r  restrained  either  in 
navigation  or  in  fishing,  or  in  the  j.Dwer  of  resorting  to  the  coasts,  upon 
points  that  may  not  have  been  already  occupied, /or  the  purpose  of  trad- 
iiijf  witli  the  natives,  saving  always  the  restrictions  and  conditions  de- 
termined by  the  following  articles." 

Articles  2,  3,  and  4  are  as  follf,  s : 

Articlk  II. 

With  a  view  of  preventing  the  rights  ot  navigation  and  of  fishing 
exercised  U;"'>n  the  Great  Ocean  by  tln^  (fitizens  and  subjects  of  the 
high  contracting  powers  from  becoming  the  pretext  for  an  illicit  trade, 
it  is  agreed  that  the  citizens  of  the  I'nited  Htates  sliall  not  n^sort  to 
any  point  where  there  is  a  Ru;-;oi;'ii  establishment  with.mt  the  permis- 
sion of  the  governor  or  commander;  and  that,  rycipnu-ally,  tiie  sub- 
"ects  of  Russia  shall  not  resort  without  permission  to  any  establishment 
of  the  United  States  upon  the  Northwest  coast. 

Article  III. 

It  is  moreover  agreed  that  hereafter  there  shall  not  be  formed  by 
the  citizens  of  the  Unif.*'  1  States,  or  under  the  authority  of  the  said 
States,  any  establishment  upon  the  Northwest  coast  of  America,  nor  in 


i 


m 


38 

auy  of  tbo  islands  iKljaceiit,  Ut  tlie  iiortli  of  fifty-four  degrees  and  forty 
minutes  of  nortli  latitude;  and  tliat,  in  tlie  same  manner,  tliere  sliall 
be  none  formed  by  llussiaii  subjects,  or  under  tlie  autliority  of  Uussia, 
south  of  the  same  parallel.  ^ 

Article  IV. 

It  is,  nevertlielessj  understood  that  during  a  term  of  ten  years, 
counting  from  the  signature  of  tlie  preaent  convention,  the  ships  of 
both  powers,  or  wliich  belong  to  their  citizeiis(»r  subjects,  respectively, 
may  reciprocally  frequent,  without  any  hindrance  whatever,  the  inte- 
rior seas,  gulfs,  harbors,  and  creeks  ui)on  the  coast  mentioned  in  the 
preceding  articde  for  the  purpose  of  fisliing  and  trading  with  the 
natives  of  the  country. 

This  treaty  was  designed  to  settle  all  thd'  questions  involved  in  the 
ukases  of  1799  and  1821,  in  which  the  lln:ted  States  claimed  any 
interest,  under  international  law,  and  ti>eTe  is  no  mention  made  of  any 
change  or  modification  of  the  exclusive  right  of  the  Knssians  (made  so 
lirominent  iu  the'ukase  of  1799)  of  "hunting  a.nd  trading  carried  on 
by  oar  loyal  subjects  in  the  northeastern  seas  ana  along  the  coasts  of 
America,"  except  that  the  right  of  "trading  with  the  natives  of  the 
country"  is  granted  to  Americans  for  ten  years,  and  after  tlnit  time 
they  "shall  not  resort  to  any  point  where  there  is  a  Russian  establish- 
ment without  t?ie  permission  of  the  governor  or  commander  J^ 

Aside  from  the  question  whether  "  the  (Jreat  Ocean  "  included  lie- 
ring  Sea,  or  is  distinguished  from  it  in  the  treaty  of  1824,  the  right 
of"  hu!<tiiig  in  the  northeastern  seas  and  along  the  coasts  of  America," 
which,  with  the  riglit  of  trading,  was  considered  so  replete  with  "ben- 
efits and  advantages  resulting  to  <uir  enipiie,"  as  to  be  made  the  sole 
grounds  of  the  ukase  of  1799,  icas  not  touched  by  the  treaty  of  Ls^4 
with  the  United  States,  or  the  treaty  of  1825  with  Great  Jiritain, 

That  right  stands  to  day  as  a  right  asserted  by  Hiissia  and  reserved 
out  of  all  treaties  with  the  United  States  and  (Jreat  Hritain. 

That  is  quite  a  sufficient  assertion  of  the  riyht,  to  support  a  2»'csoriptive 
title  to  the/ur-hearinfi  animals  in  liehriuq  Sea. 

The  right  of  "resorting  to  the  coasts,  upon  points  which  may  not 
already  have  been  occupied  tor  the  purpose  ol"  trading"  whi<'h  is  agreed 
upon  in  Article  I  of  the  treaty  of  182<1  is  altogether  distinct  from  the 
right  of  hunting  "in  the  northeastern  seas"  or  along  the  coast. 

The  rights  of  "fishing"  and  "hunting"  are  not  anywhere  alluded  to 
iu  these  ukases  or  treaties  as  being  the  same;  on  the  contrary,  tiio,  right 
of  hunting  is  reserved  to  liussian  subje«:ts  "in  the  northeastern  seas 
and  along  the  coasts  of  Amprjca,"  while  the  treaty  of  1824  forbids  citi- 


^B—^ff^^ 


39 


.. 


'^,. 


zeiis  of  the  United  States  from  resnitins  to  tlie  coast  of  Bussia  at  any 
lM)int  where  tlierc  is  a  linssiiiii  estiihlisliiiieiit  witliout  the  permiHsion 
from  the  yovornor  or  cominaiidor.  Those  were  tlie  points  along  the 
coasts  where  hunting  was  most  profitable,  where  the  fur-seals  were 
mostly  hunted,  and  where,  for  that  purpose,  Kussian  establishments 
were  located. 

If  the  "lishing"  mentioned  in  the  treaty  of  1S2*  uav<.iit  seal  "hunt- 
ing," why  was  this  "hunting"  or  "fishing"  forbidden  to  the  people  of 
United  States  at  the  places  where  tlie  Russians  found  it  most 
profitable  ?  The  Indians  at  tiiat  time  hunted  seals  in  Bering  Sea  out- 
side the  limit  of  ii  miles  from  the  coast,  and  the  llussians  hunted  them 
on  the  Pribilof  Islands.  VVliy  should  American  citizens  be  excluded 
from  "hunting"  seals  on  shore  where  the  Russians  had  establishments 
and  yet  be  adnntted  to  the  right  of  "fishing"  for  seals  in  the  sea, 
"along  the  coasts"  where  the  Indians  "hunted"  them?  These  words, 
"hunting"  and  "fishing,"  have  each  a  natural  and  clear  eignificatior , 
which  is  most  strongly  emphasized  in  these  ukases  and  in  the  treaty 
of  1824  as  being  entirely  distinct,  and  there  is  no  warrant  in  the  con- 
text of  either  of  these  ukases,  or  treaties,  or  in  the  circumstances  that 
led  to  t]>f  lU,  for  construing  "hunting"  and  "fishing"  as  identical  or 
synony  ;i:i'..-s  terras. 

T!  ■•  h'*'  rion  of  the  treaty  of  April  5-17,  1824,  with  Russia  was 
prnc  dii  ■  I  >■  ihe  12th  day  of  .Tanuaiy,  1825.  Until  then  it  was  not 
in  force.  f  Oiuiy  as  .Tu'ie  12,  1824,  Baron  Tuyll,  Russian  minister  at 
AVashingtoh,  v  as  instructed  by  his  Government  "to  the  effect  that  tbc 
Northwestern  Coast  of  America,  along  tht  -xtaiit  of  which,  by  the  provi- 
sions of  the  conventioji,  free  trading  and  hisiiir-fc'  are  permit  ,ed  subjects 
of  the  Nortli  American  States,  extends  from  5-1°  40'  northward  to 
Yakutat  (Hehring)  I5ay." 

The  underslanding  of  the  treaty  l>y  Russia  is  in  accord  with  the 
Vv ,('.  y  rftatod  in  the  note  of  the  nunister  of  finance  to  Director  Uva- 
ror  .;i  A,>ri'  t?,  1824,  in  which  it  is  ordered  that  "the  carrying  on  of 
triulv  ith  foreign  vessels  arriving  there  (liarbor  of  New  Archangel, 
now  Htka)  establislied  legulations  <ft  one  ilvminnicd  port^ 

/  conference  of  Russian  notables  was  held  in  St.  Petersburg  on  July 
21,  1824,  by  order  of  the  Enjperor,  to"  again  examine"  the  effect  of  th'' 
treaty  of  April  5,  1824,  ui)on  Russian  rights  and  interests,  "and  also 
the  means  whicii  the  Imperial  ministry  thinks  best  calculated  to  pre- 
vent all  injurious  aiul  unjust  interpretations."  • 


40 

In  the  fifth  rosohition  of  this  (conference  it  iscUiimed  tliat  the  treaty 
secures  to  Eussiii  this  advantage,  viz,  "  that  after  the  expiration  of 
ten  years  the  subjects  of  the  United  States  of  America  will  abstain 
entirely  from  visiiiitff  the  icaters  of  the  North  Ainerican  counts  beyond 
54°  10'  and  from  fishing  and  from  tradinti  there  with  the  native  inhabi- 
tants.^'' 

.The  usajority  of  tlie  members  of  that  'ttee  stated  as  their 

opinion — 

That  the  treaty  of  April  5-17  must  be  ratified,  and  that  for  the 
prevention  of  any  incorrect  interpretation  of  tiiat  act  den.  Baron 
Tuyll  may  be  instructed  at  the  proper  time  to  make  the  dechiration 
mentioned  in  the  draft  of  the  comniunieation  read  by  C«mnt  Nessel- 
rode. 

The  minister  of  iinanco  and  Acrting  State  Councillor  Drushinin, 
M'hile  admitting  the  necessity  of  ratifying  the  treaty  of  April  H-IT, 
express  and  place  on  record  the  special  opinion  hereto  annexed  in  the 
protocol,  tf>  the  effect  that  Uaron  Tuyll  should  be  instructed  at  the 
exchangeof  the  ratifications  of  that  treaty  to  stipulate  that  the  right 
of  free  hunting  and  fishing  granted  by  the  second  article  of  the  said 
treaty  shall  extend  only  from  r)4''  40'  to  the  latitude  of  (3ross  8(mnd. 

The  majority  of  the  members  (  f  the  conunittee  could  not  but  observe, 
on  the  one  hand,  that  as  the  Uus.siaii-American  (Jomi)aiiv  has  founded 
nmny  settlements  in  the  said  latitude,  article  2  of  tlie  ■  .'aty  of  Ajnil 
r>-17,  gives  it  the  desired  security  on  this  subject;  that  even  if  it 
had  simply  organized  bunting  and  fishing  in  those  regions  it  is 
extremely  dcmbtful  Avhether' American  subjects  would  undertake  the 
expense  necessary  for  voyages  to  those  Northern  latitudes  in  which 
they  can  enjoy  their  i)rivileg«'.s  for  only  ten  years,  and  whether  in  tliat 
case  they  would  expose  themselves  to  daiigi-rous  (competition  and  would 
visit  those  waters  for  liunting  and  fishing  where  they  had  long  been 
anticipated  by  tiie  couipany,  as  tluue  would  be  little  hope  for  ^hem  of 
indenuiifying  thcuiselves  for  their  expenses  and  losses. 

These  proceedings  show  that  the  Itussian  claim  at  that  time  and 
luuku'  their  construction  of  the  treaty  of  April  5-17,  1824,  was  that  the 
assertion  of  the  exclusive  right  of  fishing  and  hunting  north  of  59°  30' 
was  reserved  to  Russian  subject:  even  during  the  ]>eriod  of  the  privi- 
leges that  were  granted  to  United  Stales  citizens  under  article  4  of  tlie 
treaty,  for  ten  years. 

This  attitude  of  Uussia  towards  the  exclusive  right  to  the  fur  trade 
in  Bering  Sea  was  maintained  in  practi  e  down  to  18(57,  no  one  object, 
ing.  The  cl(tse  care  of  the  fur  seal  industry  on  the  islands,  the  poli(;eing 
of  the  seas  for  the  protection  of  fur-bearing  animals,  the  arrest  of  sus- 
pected or  offending  ships,  and  the  basing  of  civilization  and  govern- 
ment on  that  traffic  upon  all  her  coasts  and  islands  in  Bering  Sea  by 
.ireful  legislation,  all  j)rove  that  Russia  a(lmitt(Hl  nocouinuni,  or  part- 
nership rights  of  any  people  or  government  in  any  of  those  privileges 


41 


i 
( 


or  industries.    There  is  no  evidence  but  the  silence  of  other  g-^v- 
ernments,  if  any  objection  to  these  claims  of  lUissia  existed. 

In  every  stage  of  the  negotiations  l)etween  the  llnit^id  States  and  Great 
Britain  and  in  every  declaration  of  right  by  liussia,  up  to  the  exchange 
of  ratificat'iO'is  of  the  treaties  of  1824:  and  1825,  and  in  every  declaration 
of  liussia  since  that  time,  the  protection  and  security  of  her  fur  tnwle 
in  Bering  Sea  has  been  an  object  of  her  solicitude.  Kvery  govern- 
mental act  instituted  and  performed  by  Kussia  in  that  connection  has 
been  exactly  in  correspondence  with  her  assertion  of  doniinion  over 
Bering  Sea  as  a  preserve  for  taking  furs  through  hunting  "  in  the 
northeastern  seas"  and  "in  the  gulfs"  thereof,  and  of  the  Sout!'  Sea, 
or  Pacitic  Ocean,  and  along  her  coast  lino,  south  as  well  as  north  of 
the  Aleutian  Islands  and  peninsula. 

It  was  this  assertion  of  donuniou  that  the  United  States  and  Great 
Britain  yielded  to  when  they,  r?i^"ctively,  accepted  the  restrictions 
upon  the  rights  of  "  fisl'ing  and  tradij;g  with  the  natives,"  which  are 
limited  to  the  period  of  ten  years,  in  Articles  III  and  IV  of  the  treaty 
with  the  United  States,  and  Articles  III  and  VII  of  the  treaty  with 
Great  Britain. 
.  In  the  treaty  of  1824  with  the  United  States,  Articles  III  and  J.V 

are  as  follows : 

III. 

It  is  moreover  agreed  that,  hereafter,  there' shall  not  be  formed  by 
the  citizens  of  the  United  States  or  under  the  authority  of  the  said 
States,  any  establishment  upon  the  northwest  coast  of  America,  nor 
in  any  of  the  islands  adjacent  to  the  north  of  tifty-fonr  degrees  and 
forty  minutes  of  north  latitude;  and  that,  in  jlie  same  maimer,  there 
shall  be  none  formed  by  Kusslau  subjects  or  under  the  authority  of 
Russia,  louth  of  tue  same  parallel. 

IV. 

It  is,  nevertheless,  understood  that  during  a  tern>  of  ten  years,  couut- 
i:>g  fioin  the  signature  of  the  present  convention,  the  ships  of  both 
powers,  or  which  belong  to  their  citizens  or  subjects  respectively,  may 
reciprocally  frecpiciit,  without  any  hindrance  whatever,  the  interior 
seas,  gulfs,  harbors,  and  creeks,  upon  the  coast  nn'iitioned  in  the  pre- 
ceding articii),  iiu  the  purpose  of  fishing  and  trading  with  the  natives 
of  the  country. 

In  the  treaty  with  Great  Britain,  Articles  III  and  Vll  are  as  follows: 

III. 

The  line  of  demarkation  between  the  possessions  of  the  High  Con- 
tracting Parties,  upon  the  coast  of  the  continent,  and  the  islands  of 
America  to  the  northwest  shall  be  drawn  in  the  mafiner  following: 

Oonuneuciug  from  the  southernmost  point  of  the  island  called  Prince 


42 

of  Wales  Island,  whicli  point  lies  in  the  parallel  of  flfty-four  degrees 
and  forty  miautcH  north  latitude,  and  between  the  one  hundred  and 
thirty-Hrsf  and  the  one  hundred  and  thirty-tliird  degree  of  west  longi- 
tude (ineridiuii  of  Greeiiwich),  the  said  line  shall  aseend  to  the  nortii 
ah)ng  the  ehannel  called  Portland  Oliannel,  as  far  as  the  point  of  the 
contiueut  whore  it  striivos  the  fifty  sixth  degree  of  north  latitude;  from 
the  Inst-inentioiied  point  tlie  line  of  deinarkation  shall  follow  the  sum- 
mit of  the  mountains  situated  parallel  to  the  coast,  as  far  as  the  point 
of  intersection  of  tlie  one  liiindred  and  forty  first  degree  of  west  longi- 
tude (of  tlie  same  meridian);  and  finally  from  t!ie  said  point  of  inter- 
section, tlie  said  meridian  line  of  the  one  hundred  and  forty-first  degree 
in  its  prolongation  as  far  as  the  fiozen  ocean,  shall  form  the  limit 
between  the  Itussian  and  JJritish  possessions  on  the  continent  of  Amer- 
ica to  the  northwest. 

VII. 

It  is  also  understood  that  for  the  space  of  ten  years  from  the  signa- 
ture of  the  i>re8eut  convention  the  vessels  of  the  two  i)owers,  or  those 
belonging  to  their  respective  subjects,  shall  mutimlly  be  at  liberty  to 
frequent,  witl.out  any  hindrance  whatever,  all  the  inland  seas,  gulfs, 
havens,  and  creeks  on  the  coast  mentioned  in  Article  III.  for  the  pur- 
pose t>f  fishing  and  of  trading  with  the  natives. 

If  Great  Britain  had  understood  that  the  reaty  of  1824  with  the 
United  States  gave  to  tlieir  citizens  the  perpetual  right  of  fishing  and 
V  4» 'iig  with  the  natives  in  '•  interior  seas,  gulfs,  harbors,  and  creeks, 
upon  the  coast" — "the  northwest  coast  of  America'* — and  "in  the 
islands  adjaeent "  thereto,  "  to  the  north  of  54°  40'  north  latitude,"  that 
Government  would  not  have  accepted  a  limitation  of  this  right  td  a 
period  of  ten  years.  Under  such  a  construction  of  the  treaty  of  1824 
with  the  United  States  it  would  have  been  sheer  folly  for  Great  Britain  to 
have  given  Eussia  the  same  privilege  for  ten  years  from  Prince  of  Wales 
Island,  along  Portland  Channel  up  to  5G°  of  north  latitude,  for  Great 
Britain  asserted,  with  absolute  confidence,  that  Kussia  would  not  unvke 
terms  with  her  that  were  less  liberal  than  she  had  made  with  the  United 
States. 

If  Russia  yielded  her  dominion  over  her  preserve  of  fur-seal  hunting 
in  periietuity  to  the  United  Stiites,  and  then  to  Great  Britain,  what 
«-ould  have  been  the  necessity  that  prompted  them  to  insert  these  by- 
provisions  for  the  same  rights  for  a  period  of  ten  years  in  their 
treaties?  It  is  too  clear  f4)r  disputation  that  Russia  intended  to 
yield  these  rights,  reciprocally,  for  ten  years,  because  she  was  iiot  will- 
ing that  they  should  extend  beyond  that  j)eriod,  except  at  her  option. 
A  more  forcible  statement  of  the  claim  of  Russia  to  the  exclusive  right 
of  fishing  and  trading  with  the  natives  in  those  waters  could  not  well 
have  been  made, 


X 


\l 


48 


./fc- 


1 


Yet  even  these  concessions  did  not  include  the  right  of  "  huntintf "  fur- 
bearing  animals,  tchirh  liuMHimras  never  mh-cd  to  yield.  For  these  pur- 
poses her  (loniiuion  over  Bering  Sea  and  all  the  gulfs,  bays,  inland 
seas,  and  creeks  on  all  her  coasts  was  reserved. 

The 'rights  of  whaling,  fishing,  hunting,  and  trading,  conducting 
commerce  and  navigation,  are  all  referred  to  in  these  ukases  and 
tr.'iities  as  separate  and  distinct  rights.  In  their  nature  they  ai-e 
<listinct,  and  none  of  thcni  includes  the  others,  though  they  are  closely 
relateil.  When  e:'.;;Ii  of  these  rights  is  expressly  and  distinctively 
mentioned  in  one  i)art  of  these  treaties  and  ukases,  as  a  substantive 
right  or  pursuit,  it  is  not  a  proper  construction  of  these  solemn  instru 
ments  to  say  that  those  rights  are  intended  to  be  included  in  those  parts 
where  they  are  not  mentioned,  or  that  "hunting"  is  telescoped  into 
"fishing"  and  "  ftsliing"  into  "  wluiling"  and  all  of  them  into  "navi- 
ation,^  or  that  the  use  of  that  word  or  the  assertion  of  that  right 
includes  all  these  other  rights. 

Dominion  of  HeringSea  could  have  been  exercised  for  the  exclusive 
enjoyment  and  prote<!tion  of  either  of  those  rights,  without  including 
any  other,  though,  as  in  the  case  of  tlie  100  miles  limit,  which  was  a 
modification  of  t"  claim  of  the  exclusive  right  of  navigation,  the  full 
exertion  of  th.iL  power  would  have  dosed  that  sea  to  all  navigators 
whether  they  were  whalers,  fishermen,  or  hunters.  The  ukaee  of  1701) 
asserted  this  dominion,  so  as  to  protect  the  right  of  "hunting  in  the 
northeastern  seas"  and  of  tniding  with  the  natives,  and  no  other  ukase 
or  treaty  ever  yielded  the  exi-lusive  right  of  hunting,  under  any  con- 
dition, or  the  right  of  fishing  to  any  other  extent,  than  under  the  ten 
years  limit  provided  in  the  above-quoted  articles  of  those  treaties  of 
1824  and  ISlio. 

Dominion  in  one  country  over  land  or  sea,  is  entirely  consistent 
with  easement  or  privilege  in  another. 

Navigation  is  a  universal  easement  to  be  enjoyed  by  all  vessels  sail- 
ing on  lawful  voyages  upon  the  high  seas,  but  it  has  no  element  of 
dominion  to  support  it,  except  within  territorial  waters.  Fishing,  law- 
fully coriducted,  is  also  an  easement  equally  universal,  and  the  right 
is  also  ex(fl;U8ive  in  territorial  waters. 

The  dominion  that  i)rotect8  fisheries  is  more  exclusive  than  that 
which  limits  the  free  right  of  navigation.  Within  territorial  limits, 
Ashmg  in  a  pnyperty  right,  while  navigation  Avithin  those  limits  is,  for 
innocent  purposes,  an  easement  that  no  nation  denies  to  another. 


i  V   , 
HI'  1 


i 


:  II 


44 

Hunting  in  an  easement  that  is  still  more  under  tlio  control  of  national 
dbuiinioii,  becauHO  it  is  fonducted  with  lirearins  and  is,  therefore,  a 
more  dangeious  practice  wliere  the  people  are  savages  or  are  rebel- 
lious, because  it  furiiislies  a  pretext  for  introducing  among  them  arms 
and  ammunition.  And  luinting  and  trapping  are  ditt'erent  ]mr8uits. 
Russia  had  powerful  inducements  for  keeping  hunting  on  land  or  sea 
and  trading  witli  the  natives  under  her  exclusive  dominion. 

What  is  dominion!  Sir  Robert  Phillimore,  in  liis  "Commentaries 
on  International  Law,  Vol.1,  p.  tHHi,  Ed.  1871,  says  :  "Dtmiinionis  the 
lUllest  riglit  wliich  ciin  be  exercised  over  a  thing  :  the  riyht  of  property, 
HO  ctiUedi"  On  page  'J07  he  says  :  "As  dominion  is  acquired  by  the  com- 
binatiou  of  the  two  elements  oifaet  and  intention,  so,  by  the  dissolution 
of  these  elements,  or  by  the  contrary  fact  and  intention,  it  may  be  lost 
or  extinguished." 

On  page  274  he  says  : 

But  when  occupation  by  use  and  settlement  ha«  followed  upon  dis- 
covery, it  is  a  clear  juoposition  of  law  that  there  exists  tliat  corporal 
jKissession  {rorporaliH  quaedam  posHensio  (a)  «lctentioeorporiiHn  (b) )  which 
confers-an  exchisive  title  upon  the  occapant,  and  the  dominium  emi- 
nenH,  as  Jurists  speak,  upon  the  country  whose  agent  lie  is. 

On  page  285  lie  further  says : 

CCX  Lll.  Tlie  nature  of  occupation  is  not  confined  to  any  one  class  or 
description ;  it  must  be  a  beneficial  use  and  occupation  (le  travail  d'  ap- 
propriation); but  it  nuiy  be  by  a  settlement  for  the  purpose  of  prose- 
cuting a  particular  trade,  sucli  as  a  fishery,  or  tVu-  working  mines,  or 
pastoral  occupations,  as  well  as  agriculture,  though  Bynkershoek  is  cor- 
rect in  saying,  t'H/<«»«  utique  et  cura  agri  possessionem  quam  maxime 
indicat. 

Vattel  justly  niaintains  that  the  pastoral  occupation  of  the  Arabs 
entitled,  them  to  the  exclusive  possession  of  the  regions  which  they 
inhabit. 

It  has  been  truly  observed  that,  agreeably  to  this  rule  the  North 
Ameri<;an  Indiiins  would  have  been  entitled  to  have  excluded  the  British 
fur-traders  from  their  hunting  grounds;  and  not  having  done  so,  the 
latter  must  be  considered  as  having  been  admitted  to  a  joint  occujta- 
ticm  of  the  territory,  and  thus  to  have  become  invested  with  a  similar 
right  of  excluding  strangers  from  such  portions  of  the  country  as  their 
own  ii  Idstrial  ojterations  pervade. 

CC  VjIII.  A  similar  settlement  was  founded  by  the  British  and 
Rassia.'i  fur  com])anies  in  North  America. 

The  chief  portion  ot  the  Oregon  Territory  is  valuable  sc^ly  for  the 
fur-bearing  animals  which  it  produces.  Various  establishments  in  dif- 
ferent parts  of  this  Territory  organized  a  system  for  securing  the  preser- 
vation of  these  animals,  and  exercised  for  these  purposes  a  control  over 
the  native  population.  This  was  rightly  contended  *o  be  tlie  only  exer- 
cise of  proprietary  right  of  which  these  particular  regions  at  that  time 


% 


V-' 


■ipi 


•t. 


45 

were  susceptible,  and  to  work  tluit  a  henejicial  use  was  made  of  tlie 
wliole  Territory  by  tbe  occupants. 

CCXLIV".  It  should  be  mentioiiod  tliat  the  practice  of  nations  in 
both  hemispheres  is  to  acknowledge  in  titvor  of  any  civilized  nation 
making  a  settlement  in  an  uncivilized  country  a  right  of  inei'nqttion 
of  the  contifiKoiis  territory  from  the  native  inliabitants  as  against  any 
other  civilized  nations.  It  is  a  right  claimed  by  (ireat  Hritain  with 
respect  to  her  Australian  settlements,  especially  New  Zealand;  and  by 
the  United  States  of  America  with  resjiect  to  the  Indians  in  their  back 
States. 

In  the  claim  of  Russia  to  the  exclusive  "hunting  in  the  Northeastern 
seas,"  to  say  nothing  of  the  rights  of  fishery  and  navigation,  as  such 
rights  are  deflnidinthe  international  law,  there  is  enough  in  the  highest 
legal  authority  to  sui)port  thefimndation  of  the  right,  which  is  the  hand- 
maiden of  peace,  naniely,  the  right  which  is  "a  nu)de  ofoiiginal  acqui- 
sition which  is  effected  by  the  operation  of  time,"  and  is  "what  the 
English  and  French  Jurists  term  j)rescription." 

On  page  2J»8,Vol.  1,  Sir  liobert  rhillimore  saya: 

The  doctrine  of  immemorial  prescription  is,  from  the  very  necessity 
of  the  case,  indisp«nsable  in  the  system  of  public;  law.  A(;cordingly 
we  find  it  mentioned  more  than  on*-"  in  the  constitutions  of  the  ancient 
German  Empire  and  as  a  mode  of  acquiring  ]mblic  rights. 

On  pages  21»i>  and  300  the  same  author  says: 

Having  discussed  the  position  of  prescrii)tion  in  the  systems  of  ])ri 
vate  and  i)ubli(!  law  we  now  api>roa(!h  the  consideration  of  a  matter, 
holden  by  the  master  mind  of  (irotins  to  be  one  of  no  nu'an  difficulty, 
namely,  international  prescription.  Does  there  arise  between  nations, 
as  b('twe(!n  individimls,  a  presumption  from  long  possession  of  a  terri- 
tory or  of  a  right  which  must  be  consideied  as  a  h'gitimate  source  of 
international  acquisition  ? 

In  seeking  an  answer  to  this  important  question  it  is  necessary  to 
keep  clear  of  all  subtle  discjuisitions  with  which  this  subject  has  been 
perplexed;  whether,  for  instance,  itbe  the  creatureof  natural  or  civil  law, 
or  whether  it  mu,st  be  always  founded  ui)on  a  presumption  of  voluntary 
abandonment  or  dc  eliction  by  the  foi mer  owner.  Thiough  these  meta- 
physical labyrinths  we  cannot  find  a  clue  for  questions  of  international 
jurisi»riKlence.  The  effect  of  the  Inpne  of  lime  upon  the  property  and 
right  of  one  nation  relatively  to  another  is  the  real  subject  for  our  <M>n- 
sideration.  And  if  this  be  borne  steadily  in  mind  it  will  be  found,  on 
the  one  hand,  in  the  Idghest  degree  irrational  to  deny  that  prescripticm 
is  a  legitimate  meai^  of  international  acquisition ;  and  it  will,  on  the 
other  hand,  be  foufid  both  inexpedient  and  impracticable  to  attemi»t  to 
define  the  exact  period  within  wlii<!h  it  can  be  said  to  have  become 
establislu^— or,  in  other  words,  to  settle  the  pn'cise  limitation  of  time 
whi<'h  gi^i  validity  to  the  title  of  naticmal  i)ossession8. 

Again,  on  pages  .'iOl,  302,  and  303,  he  says: 

CCLVIII.  Itistrue  that  some  later  writers  on  the  law  of  nations  have 
denied  that  the  doctrine  of  prescription  has  any  place  in  the  system  of 
international  law.  But  their  opinion  is  overwhelmed  by  authority,  at 
variance  with  practice  and  usage,  and  inconsistent  with  the  reason  of 
the  thing.     Grotius,  Heiueccius,  Wolff,  Mably,  Vattel,  liuthertbrth, 


4» 

Wheaton,  and  Burke  constitute  a  greatly  prejwuderatiiig  array  of 
authorities,  both  as  to  uuniber  iind  weight,  ui>oii  tlie  opposite  side. 

The  practiee  of  nations,  it  is  not  denied,  proeeeds  upon  the  presump- 
tion of  lu-escripticni,  wlienevertliere  is  scope  for  the  nduiission  of  tliatdoc- 
triiie.  Tlie  same  reason  of  the  tiling  which  intioduced  this  priuciide 
into  tlie  civil. jurisprudence  of  every  country,  in  order  to  quiet  ])osseB- 
sion,  give  security  to  property,  stop  litigation,  and  prevent  a  state  of 
continued  bad  teeliug  and  hostdity  between  individuals,  is  etjually 
|>owerfuI  to  introduce  it,  for  tiie  same  purpose,  into  the  juri8i)rudence 
which  regulat«'8  the  intercourse  of  one  society  with  another,  miire 
e8i)ecially  when  it  is  reniendiered  that  war  represents  between  States 
litigation  between  individuals.  It  is  very  strange  that  the  fact  that 
most  nations  p<»s8e8s  in  their  own  municipal  codes  a  positive  rule  of 
law  upon  the  subject;  has  been  used  as  an  argument  that  the  general 
doctrine  has  no  foundation  in  international  law. 

It  is  adnutted,  in<l(^ed,  that  immemorial  prescription  constitutes  a 
good  title  to  national  possession;  but  this  is  a  perfectly  nugatory 
admission,  il',  as  it  is  sometimes  explained,  it  means  only  that  a  State 
which  has  accpiired  originally  by  a  bad  title,  may  keep  possession  of 
its  acquisition  as  against  a  State  which  has  no  better  title.  If  it  had 
been  merely  alleged  that  the  exact  number  of  years  prtscribed  by  the 
Roman  law,  or  by  the  municipal  institute  of  any  particuiar-uation,  as 
necessary  to  constitute  ordinary  ])rescri])tions,  is  not  binding  in  the 
affairs  of  nations,  the  ])Osition  would  bo  true.  It  is,  perhaps,  the 
difliculty  attending  the  application  to  nations  of  this  technical  pait  of 
the  doctrine  which  has  induced  certain  writer's  to  deny  it  altogether; 
but  incorrectly,  for,  whatever  the  necessary  lapse  of  time  may  be,  there 
unquestionably  is  a  lapse  of  time  after  which  one  State  is  (entitled  to 
exclude  every  other  from  the  property  of  which  it  is  in  actual  jjosses- 
sion.  In  other'words,  there  is  an  international  i)re8cription,  whether 
it  be  caded  immemorial  possession  or  by  any  other  name.  The  peace 
of  the  world,  the  highest  and  best  interests  of  humanity,  the  fulfillment 
of  the  ends  for  which  States  exist,  require  that  this  doctrine  be  firmly 
incorporated  in  the  code  of  international  law. 

Will  this  tribvnal  nhrinkfrom  the  recognition  of  thix  doctrine^  note  that 
an  opportvitity,  ilistinctly  (fiven,  vails  for  a  firm  declaration  f 

The  importance  of  prescription  as  a  basis  of  title,  or  right,  to  any 

property,  or  exc^lusive  privilege,  is  thus  stated  by  Sir  Robert  Philli- 

more  (p.  305) : 

But  tlsat  prescription  is  the  main  pillar  upon  which  the  security  of 
national  property  and  peace  depends,  is  as  incontrovertable  a  proposi- 
tion as  that  the  property  and  pesice  of  individuals  rest  upon  the  same 
doctri'.ie. 

To  these  remarks  should  be  added  the  observafion  of  another  great 
modern  jurist: 

The  general  consent  of  mankind  has  established  the  priSciplc  that 
long  and  uninterrupted  possession  by  one  nation  excludes  the  claim  of 
every  other.  Whether  this  general  <'onsent  be  considered  as  an  implied 
contract  or  as  positive  law,  all  nations  are  equally  bound  by  it,  since 
all  are  parties  to  it,  since  none  can  safely  disregard  it  without  impugn- 
ing its  own  title  to  its  possessions,  and  since  it  is  founded  upon  mutual 
utility,  and  tends  to  promote  the  general  welfare  of  mankind.    (Wheaton . ) 


f^. 


^ 


masm 


T 


^r'^ 


il 


47 

In  onci  of  those  trwatisca  wlildi  show  Iiow  deeply  the  mind  of  the 
writer  was  iiiibuud  with  tlie  priiiciplus  of  }i;eneral  Jiirisprudeiute,  Mr. 
liurke  UHcs  tiie  tolh)wiiij;  adiiiirabli'  expressions: 

If  it  were  permitted  to  ar^ue  with  power,  might  one  not  asl;  one 
of  thes(^  (rentlenien  wlietlier  it  wiuihl  not  be  more  natnnil  instead  of 
wantonly  mooting;  these  (piestions  eonceniin^  tlieir  property,  as  if  it 
were  an  e.veieisr  in  taw,  to  found  it  on  tin*  solid  rock  of  prest-iiption  f 
Tlie  soundest,  the  most  {general,  tlie  most  reeofjnizcd  title  Itetwe^'U  man 
and  man  that  is  known  in  municipal  or  puhlie.jurisiaudenee;  a  title  in 
which  not  arbitrary  histitutions.  but  tiie  eternal  order  of  things  tfives 
jnd<j;ment;  a  title  whieh  is  not  the  cieature,  Imt  the  master  of  positive 
law;  n  (Hie  irhich  thoHffh  not  fixed  in  its  ttrm,  is  rooted  in  its  itrinripleH 
in  the  law  of  nnture  itself,  and  is  indeed  the  original  ^rouml  of  all 
known  property;  for  all  property  in  soil  will  always  i)e  traced  back  to 
that  source,  and  will  rest  there.  •  •  •  These  {gentlemen,  for  they 
have  lawyers  amongst  them,  know  as  well  as  I  that  in  Kn^iland  we 
have  always  a  preseiiption  or  limitation,  us  nil  uations  have  af/ttinut 
each  other.  *  *  *  All  titles  terminate  in  pres<;ription;  in  whieh 
(differently  from  time  in  the  fabulous  instances)  the  son  devours  the 
father,  and  the  last  prescription  eats  np  all  the  former. 

These  citations  from  very  eminent  British  authority  establish  the 
rifjht  of  a  {fov«'rnment  i»y  i>res«'ription,  based  on  oceupan<!y  and  claim 
of  title,  to  any  (lomiuitnK  on  land  or  sea,  of  anythiiif^  in  the  nature  of 
property,  whether  corporeal,  or  incorporeal,  as  llrndy  as  if  the  rijjht 
were  established  by  j^rant  or  as  the  result  of  coinpiest  or  cession. 

The  true  doctrine  of  the  international  law  is  stated  in  the  extract 
above  <iuoted  from  VVheat<tn  (Vol.  1  p.  li()7)  that  "The  general  con- 
sent of  mankind  has  established  the  ]>rinciple  that  iong  and  uninter- 
rupted possession  by  one  nation  excludes  the  claim  of  every  other." 

This  rule  is  fully  applicable  to  the  dominion  of  Russia  over  the  fur 
industry  and  trade  in  Bering  Sea,  which  was  never  yielded  or  trans- 
ferred to  any  government  until  it  was  sold  to  the  United  States. 

Dominion  also  includes  the  right  of  a  government  to  tlie  soil  beneath 
the  territorial  and  ail.jaeent  waters.  The  claim  of  territorial  waters 
over  an  area  of  the  sea  that  is  clearly  demarked  by  land  boundaries, 
though  not  entirely  inclosed  by  the  land  is,  a  valid  exercise  of  power 
by  the  government  that  owns  the  land  which  forms  the  coasts  and 
islands  that  define  the  boundary.  It  nniy  not  be  suftieient  to  destroy 
the  easements  that  other  nations  may  have  in  those  waters,  yet,  it  ia 
dominion  or*ownership  of  the  Uind  beneath  those  waters,  and  it  is  clearly 
sufficient  to  support  the  municipal  jtirisdirtii>ii  of  the  government  over 
its  own  citizens,  and,  also,  to  support  a  claim  to  any  pearl  or  oyster  beds 
beneath  such  an  area  of  waters,  or  any  mines  that  may  be  fiMind  there. 

Such  a  claim  and  assertion  of  ownership  may  not  be  suflBcient  reason 


ISSSi 


48 

for  (lenyiug  to  otlier  nationo  in  thut  urea  the  privilege  of  nuvigatiou 
or  tlsliery,  but  that  fact  does  not  negative  the  (lomiiiioii  tliat  may  be 
tliU8  lawfully  exerciHed.  To  illiiHtnite:  If  an  island  slionld  be  throwi. 
up  by  volcjinie  action  or  the  action  of  the  water  within  tlie  limits  of 
Bering  Sea  it  would  belong  to  tlie  United  States,  without  first  discovery 
or  (M'cupatiim,  in  virtue  <>f  its  (huninion  already  exercised  over  that  sea. 
And,  so,  if  it  became  necessary  that  the  United  States  should  i-.lose 
Uuimak  Tass  with  obstruction,  for  any  purpose,  even  to  the  great 
inconvenience  of  navigators  or  fishermen,  the  question  of  the  right  to 
do  this  would  be  resolved,  under  the  interiiationiil  law,  by  the  other 
(|uestioii  whether  the  easement  of  navigation  through  that  pass  was  of 
such  imjtortiince  to  the  world  that  the  Owner  of  the  soil  beneath  the 
water  would,  in  justice,  be  compelled  to  yield  its  rights. 

In  all  such  (uises,  where  the  exercise  of  the  privilege  of  navigation, 
fishery,  or  other  easement  is  injuiions  to  the  owner  of  the  soil  above 
which  it  is  exercised,  the  privilege  must  yield  to  tln!  higher  right  of  the 
dominion  of  the  owner  of  the  soil. 

The  right  of  dominion  in  a  sea  like  Bering  Sea  or  the  sea  of  Okhotsk 
does  not  depend  on  its  being  separated  from  water  communication  with 
the  ocean.  If  the  configuratiou  of  the  land  surrounding  it  is  such  as 
to  make  it  necessary  to  the  i)eculiar  commerce  of  the  country  within 
which  it  is  embayed,  or  to  the  defense  of  such  country,  or  to  the  proper 
administration  of  its  powers  of  government  over  its  own  people,  it  is  a 
right  ex  debito  justitia;  that  there  should  be  dominitm  over  such  sea. 

This  is  the  right  that  is  now  the  foundation  of  the  exclusive  right  of 

several  nations  to  dominion  over  seas  that  are  not  inclosed  by  the  land 

on  their  shores,  as  stated  by  Sir  Uobert  Phillimore,  page  225,  as  follows: 

Tlie  exclusive  right  of  the  Britisli  Crown  vo  the  Bristol  Channel,  to 
the  channel  between  Ireland  and  Great  Britain  (Mare  Hibernicnm, 
Canal  de  St.  George),  and  to  the'<!hannel  between  Scotland  and  Ire- 
land is  uncontested.  I'retty  much  (^»n  the  same  category  are  the  three 
straits  forming  the  entrance  to  the  Baltic,  the  (ireat  and  the  Little 
Belt,  and  the  Soinwi,  which  belong  to  the  Crown  of  Denmark;  the 
Straits  of  Messina  [il  faro  M  Mexsina,  f return  Sicvhim),  once  belonging 
to  the  kingdom  ot  the  Two  Sicilies;  the  straits  leading  to  the  Black 
Sea,  the  Dardanelles  and  Hellespont;  theThracian  Bospliorus,  belong- 
ing to  the  Turkish  Empire..  To  narrow  seas  which  flow  between 
separate  portions  of  the  same  kingdom,  like  the  Danish  and  Turkish 
Straits,  as  to  other  seas  conunou  to  all  nations,  like  the  Straits  of 
Messitiaand,  perhaps  the  9t.  (leorge's  Channel,  the  <locti'ine  o( innocent 
line  is,  according  to  Vattel^  strictly  applicable. 

In  the  case  of  the  seas  here  mentioned  other  iiations  have  the  I'ight 

to  the  innocent  use  of  them,  but  it  must  rest  with  the  nation  claiming 


Ww^^^^t^^l^ 


mmimamfme^'m 


49 

them  to  iJctermlne  ichether  tln'  umv  that  In  maile  of  them  by  another  nntion  is 
ititMenit.  Tliis  is  all  tliat  tlic  United  States  <-laiin  of  "(loiniiiiou'' 
over  Heriiifj;  Sea  in  respect  to  llie  [troteetion  and  preservation  of  the 
fur-seals  resorting-  to  tliose  waters  and  tlie  industry  in  tlie  ju'lts  and 
oil  so  lon}j  established  on  their  islands,  whieli  have  n«>  value  for  any 
other  industrial  purpose. 

Tliia  claim,  when  these  waters  arc  invaded  l»,v  a  destructive  inetluMl 
of  hunting  the  seals,  is  a  rijflit  of  self  preservaticui.  Tiuit  right  is  thus 
stated  by  Sir  Robert  Philliinore: 

CCX.  The  right  of  self  ])reservation,  by  that  defense  which  |»revents, 
as  well  as  that  which  re|«'ls,  attack,  is  the  next  internatioind  right 
which  presents  itself  for  discussion,  and  which,  it  wil'  iic  seen,  may 
under  certain  circumstances  and  to  a  certain  extent  n  tljjy  the  right 
of  territorial  inviidabdity. 

(JCXI.  The  right  of  self-prescrvatiiui  is  the  lirst  law  of  nations  as  it 
is  of  individuals.  A  society  which  is  not  in  a  condition  to  repel  aggres- 
sion from  witlumt  is  wanting  in  its  print-ipal  duty  to  the  niendiers  of 
which  it  is  composed  and  to  tlu^  chief  end  of  its  institution. 

All  means  wiiich  do  not  att'ect  tlu^  independence  of  other  nations 
are  lawful  for  this  end.  No  nation  has  a  right  to  prescribe  to  anoiher 
what  these  means  shall  be,  or  to  reipiire  any  a»M'ount  of  her  conduct  in 
.this  respect. 

CCX  1 1.  The  means  by  which  a  nation  usually  provides  for  her  safety 
are:  (I)  I$y  alliances  with  other  States;  (2)  i>y  luaiiitainiug  a  military 
and  naval  force;  and  (.?)  by  erecting  fortifications  and  taking  measures 
of  the  like  kind  within  her  own  dominions.  Her  full  lilierty  in  this 
respect  can  not  as  a  general  ])rinciple  of  international  law  be  tio  boldly 
announced  or  too  tirudy  nuiintain(>d,  tliough  some  modilication  of  it 
appears  to  flow  from  the  e(pnil  and  corres]»onding  rights  of  other 
nations,  or  at  least  to  be  re(pnred  for  the  sake  of  the  general  welfare  and 
peace  of  the  world. 

The  United  States  have  the  right  to  treat  the  sudden  and  dangerous 
increase  of  the  number  of  vessels  engaged  and  the  nund)er  of  seals 
taken  in  pelagic  hunting  as  an  impending  threat  of  the  destruction  of 
the  seal  herd  that  habitually  resorts  tt)  their  islands.  These  appre- 
hensions are  more  directly  excited,  because  they  are  actually  Justified 
by  the  attack  made  on  the  seal  herd,  than  those  which  are  regarded 
as  a  just  cause  of  war  in  relation  to  armaments  by  neighboring  imtionii. 
Of  these  Sir  Robert  Phillimore  says,  on  page  2;"»3: 

CCXIII.  Armaments  suddenly  increased  to  an  extraordinary  amount 
are  calculated  to  alarm  other  nations  whose  liberty  they  api)ear,  more 
or  le^s  acctH^ding  to  the  circumstances  of  the^case,  to  menace. 

In  the  seizure  of  ships  within  the  eastevn  waters  of  Bering  Sea  the 

United  States  resisted,  in  the  beginning,  a  raid  upon  her  industry  which 

suddenly  threatened  its  destruction,  and  this  resistance,  which  was 

timely  and  necessary,  was  made  withiu  her  own  dominion — a  domin- 

11495  M 4 


I 


V'&fSf'''. 


smsftj 


50 

ion  established  by  prpscription  as  to  the  fpr-soal  indnstry,  and  which 
also  has  l''»i'  it8  support  tlic  princiiyk's  of  the  international  law  which 
apply  to  the  IJritish  waters,  above  <iuoted,  and  to  other  seas  that  are 
not  entirely  inclosed  by  the  land  mentioned  in  the  following  ({uotations 
from  Phillimore,  vol.  1   p.  24.'5: 

CCV.  With  respect  to  seas  entirely  inclosed  by  the  land,  so  as  to 
constitute  a  salt-water  lake  (niaria  claiisanuers  feunees,  encloses:  IMn- 
neumeer,  {jeschlossene  innere  Meere),  tlic  j,ener.  i  presumption  of  lav/ is 
that  they  belonj!;  to  the  surrounding  ten  itory  or  territories  in  as  full 
and  complete  manner  as  a  fresli  water  laivc.  The  Caspian  and  Black 
seas  naturally  belouft^  to  this  class.  Upon  tlie  former  sea  liussia  had 
by  treaty  with  Persia,  the  exclusive  right  of  navigation  with  ships  of 
war,  an<i  by  the  <  -'atyof  the  Dardaiu'lies  the  1  Mack  Sea  was  practically 
<viii,'ined  to  liussian  and  Turkisli  ships  t)f  war.  lUit  by  the  treaty  of 
Paris  of  lS."i(}  this  sea  is  neutralized  and  open  to  the  merchant  ships  of 
ail  nations  and  closed  to  snips  of  war  of  any  State. 

(HJVI.  There  is  another  clas^5  of  inclosed  seas  to  which  the  same 
rules  of  law  are  applicable — seas  wliicii  are  land-locked,  t'rmgh  not 
entirely  surrounded  by  land.  (H"  these,  that  great  inlet  Avhich  wishes 
the  coast  of  Denmark,  Sweden,  l{ussia,  and  I'russia,  tiie  Ostsee  i.s  the 
(lermans  call  it,  the  I>altic  Sea  acctuding  to  its  usual  apx)ellation,  is 
the  }»rincipal. 

J3ut  th«'.  right  of  self-preservation  of  the  United  i-States,  in  r(>spect  to 
the  fur  seal  industry,  naturally  and  without  reference  to  the  actual 
property  in  the  animals,  extends  beyond  her  donjiuion.  As  to  sixeh 
rights  Phillimore  says: 

OCX IV.  We  have  hitherto  considered  what  measures  a  nation  is 
entitled  to  take  for  the  preservation  of  her  safety  withi'i  her  own 
dominions.  It  mav  hap!)eM  that  tlie  same  riglit  may  warrant  her  in 
extending  precaiitioiuuy  measures  n-ithoui  these  limits  and  even  in 
transgressing  the  borders  of  her  iieiglihor's  territory.  For  irifcernational 
law  considers  the  riglit  of  se]f-preKe:•^■ation  as  prior  and  j)aramouut 
to  that  of  territorial  inviolability,  and,  where  they  cimtiict,  justifies 
the  maintenance  <tf  the  former  at  the  expense  of  the  latter  right. 

If  thi.s  rigiit  of  self-preservation  is  prior  and  paramount  to  territo- 
rial inviolability,  it  must  be  superior  to  any  right  or  easement  of  fishing 
and  hunting,  and  better  entitled  to  the  protection  of  international  law. 
The  necessity  for  protecting  this  right  is  now  as  manifest  and  indis- 
putable beyond  Bering  h'ea  as  within  its  limits.  When  a  source  of 
revenue  or  a  necessary  instrumentality  of  government  is  attacked,  or 
seriously  threatened,  the  oiicasitui  arises  for  the  interposition  of  the 
right  of  self-defense. 

The  configuration  of  Bering  Sea,  its  coasts  and  islands,  is  sn<!h  as  to 
give  it  an  excei»ti<inal  relation  to  the  outside  world.  It  is  inclosed  on 
all  sides  by  land  and  frozen  waters,  except  through  the  passes  of  (;ho 


k 


m 


V 


mmm 


I- 


61 

Alcitian  and  Kamtschatkan  islands.  A  blocLiue  of  the  Aloutiau 
passes  would  dose  every  i)ort  in  Bering-  Sea  and,  wlieio  a  viatioii  may 
be  thus  locked  in,  it  is  not  too  much  to  claim  that  it  has  the  right  of 
dominion  over  such  interior  waters  r.nd,  for  purposes  of  self-preserva- 
tion, to  lock  other  nations  out. 

It  is  a. just  riyhttliat  is  thus  ciainied  by  the  United  States,  and  when 
it  is  used  for  purposes  of  self-preservatio;»  it  is  sustained  by  inter- 
national law. 


1  it» 


i 


JIWill!MJ%-L'L.!..'l.J.if|WL.I|iliJJi.l".tU^ii...JBAaBBI 


t 


I    ! 


WHEN  POINT  FIVE  OF  ARTICLE  VI  OF  THE  TKEATY  WAS  UNDER  CON- 
SIDERATION SENATOR  MORGAN  DELIVERED  THE  FOLLOWING 
OPINION: 

T  beg  leave  to  submit  the  followiiij;'  additional  statements  and  argu- 
ments which  I  think  are  siifHcient  t«»  establisli  that  the  i)rescriptive 
rights  of  Russia  and  the  United  States,  in  respect  of  the  fur-seals  that 
habitually  resort  to  Bering  Sea,  are  to  be  safely  based  ii])on  the  continued 
and  un(iuestioned  usage  of  both  c(Uintries,  as  well  as  upon  the  peculiar 
characteristics  of  these  animals. 

And  I  will  endeavor  to  state  the  reasons  that  compel  me  fb  hold,  on 
these  and  some  other  grounds,  that  the  United  States  have  a  right 
of  property  and  protection  in  these  aitimals. 

I  have  already  presented  to  flie  tribunal,  on  a  previous  day,  the  views 
I  entertain  as  to  the  true  histoiy  of  the  claims  set  up  by  Russia  relat- 
ing to  the  exclusive  right  to  control  and  protect  the  fur  industry  in 
Bering  Sea,  and  have  endeavored  to  state  generally  the  foundations  in 
law  and  fact  upon  which  Uussia  rested  her  claims.  I  will  now  again 
briefly  review  some  of  those  facts  as  I  believe  they  exist,  and  will  refer 
lo  others,  and  endeavor  to  connect  them  with  the  doctrines  of  the  laAV 
which  t  thiidi  are  clearly  applicable  to  establish  a  right  of  property  in 
the  fur-seals  that  is  well  founded,  both  as  a  riglit  by  prescription  and 
a  rigiit  growijig  out  of  the  usefnl  and  donuwtic  nature  of  these  animals. 

The  Hussian  (lovernment  exercised  tiic  riglii,  to  own  and  control  tlio 
seals  that  resorted  to  Bering  Sea,  and  made  temporary  grants  to  its 
subjects  of  the  right  to  take  them  in  those  waters. 

It  may  be  said  that  tliis  was  an  assumption  of  riglit  on  the  part  of 

Russia  not  supported  by  any  rule  of  international  law.    It  was  not 

more  distinctly  an  assumption  of  right  than  was  tlie  title  to  the  islands, 

based  on  the  discovery  of  tliem  by  a  IJussian  subjett.    In  b(»th  eases 

a  initive  sovereignty  was  displaced  to  make  room  for  tlie  claims   of 

Rp.ssia,  bocked  by  sujterior  force.    The  i)rocos8esofai)[»ropriation  were 

the  same  in  reference  to  the  seals  and  seal  llsheries  as  they  were  in 
52 


ii 


t 


u 


53 

refertMice  to  the  islaiuls,  viz,  discovery,  claim,  occupatiOii,  and  devp^op- 
iiient.  Exclusive  use  and  the  acquiescence  of  other  civilized  i)o\vers 
were  the  attendant  facts  tliat  established  the  right  of  property  in  both 
cases. 

As  all  international  law  grows  out  of  custom  and  has  no  other  root, 
it  can  not  be  denied  that  the  right  of  Kussia  to  appropriate  and  protect 
this  herd  of  fur-seals  has  been  established  by  custom  and  iaaintai;ied 
by  constant  and  exclusive  use.  Certainly  no  other  ^lation  in  its  sov- 
ereign character  has  clainieu  these  seals  or  denied  tlie  riglit  of  liussia 
to  their  exclusive  ownership.  W'iien  (Jreat  Britain,  in  181i5,  was  treat- 
ing with  Russia  for  an  open  sea,  free  navigation,  and  the  rights  of  fish- 
ing iu  those  waters,  she  set  up  no  claim  to  a  common  riglit  (»f  hunting 
seals  or  fur-bearing  animals  in  those  regions.  Russia  went  on  renevving 
her  charters  for  these  purposes  to  her  subjects,  and  (neat  Britain  stood 
by  and  made  no  asNCitioii  o(  sncii  riglit  for  iicrsclt  or  her  tubjccts  for 
about  a  half  century.  Nearly  a  century  elapsed  after  the  colonization 
of  the  islands  by  Russia  before  any  British  subject  opposed  the  claim 
of  Russia  and  the  United  States,  her  vendee,  to  a  i)r(»|)ert,v  i  iglitiu  the 
seals  that  habitually  resorted  to  Bering  Sea.  Tli  are  few  custom- 
ary riglits  that  have  a  surer  foundation  in  usage  or  up  'U  tlic  doctrine 
of  accpiiescence  tliau  the  world  has  accorded  to  Russia  in  rest  ■t  of 
the  riglit  to  the  fur-seals  resorting  to  Uering  Sea. 

The  long  acquiescence  of  Great  Britain  in  this  claim  of  ownershii)  in 
seals  by  Russia  was  not  only  without  objection,  j)rotest,  en-  diplomatic 
suggestion  to  the  contrary,  but  that  (iovernment  has  encouraged  her 
own  people  to  base  an  extensive  and  valuable  industry  upon  the 
niaterial  provided  by  Russia  and  regularly  su])plied  to  them  from  her 
fur-soal  husbandry. 

It  is  now  too  late  lor  (heat  Britain  to  say  that  Russiaand  the  United 
States  mistook  the  law  of  nations  \vi;cn  tliey  set  up  rights  of  property, 
in  fur-seals.  Ninety  years  of  acquietccnce  attended  with  no  harm  to 
British  people  or  interests,  but  with  great  benefits  to  both,  is  time 
enough  in  which  to  establish  the  consent  ofClreat  Jhitain  that  live 
seals  resorting  to  Bering  Sea  aie  jiroiieity,  as  much  so  as  dead  ones  are 
that  are  slain  by  British  subjects.  15ut  the  accpiiescence  of  Great 
Britain  is  not  needed  to  establish  i  he  proposition  that  there  is  property 
in  live  seals  and  that  it  exists  nttioiie  noli. 


I 


B^T^iWii  wiUm 


mtmmma 


54 


*  ;. 


THE  THIUD  <iUE.«TiO]V  IN  ARTICLE  I  OF  THE  TUEATY    SEEMS  TO  HAVE 

HEEN   AVOIDED, 

Ouo  ol'the  tlirofc  questions  subiiiitted  to  iubitratioii  in  Article  I  is  so 
(lepeiideut  for  its  decisiou  upon  the  question  of  proijerty  in  fur-seals 
that  it  sliould  be  considered  in  connection  with  it.  It  is  concerning 
'»tlie  rights  of  th<-'  citizens  and  subjects  of  either  country  as  regards 
the  taking  of  fur-seal  in  or  resorting  to  said  waters."  The  founda- 
tion of  such  a  right  could  be  none  other  than  a  right  of  property  in 
the  seals  when  captured  or  killed  in  uonterritorial  waters — a  right 
acquired  by  the  capture  of  the  seal,  dead  or  alive.  The  flnal  analysis 
of  this  (juestion  is  whether  a  right  of  property  can  attach  to  a  living 
seal  that  is  found  swimming  in  the  ocean.  This  question  is  noA.iierc 
presented  in  the  treaty  or  alluded  to  as  a  question  to  be  submitted  to 
the  Arbitrators,  except  in  the  tirst  article.  It  is  the  postulate  stated 
by  Great  Britain  in  these  contentions,  around  which  every  fact  and 
every  principle  of  law  asserted  by  Great  JJritain  is  grouped. 

If  Jiritish  subjects  have  the  right  of  taking  fur-seals  in,  or  habitiuiUy 
resorting  to,  Bering  Sea,  it  makes  little  ditterence  what  the  rights  of 
the  United  States  may  be,  for  they  would  amount  to  nothing  prac- 
tically, and,  in  theory,  such  a  right  would  destroy  all  the  grounds 
on  which  the  United  States  could  rest  a  claim  to  the  right  of  protect- 
ing the  seals  outside  the  ordinary  3-mile  limit. 

This  question  is  submitted  for  decision  in  such  broad  form  as  to 
include  "the  rights  of  the  citizens  or  subjects  of  rjther  country,  as 
regards  the  taking  of  fur-seals  in,  or  habitually  i  (-sorting  to  said 
waters." 

The  statutes  of  the  United  States,  following  the  unqualified  asser- 
tions of  Russia  while  she  was  owner  of  these  islands,  assert  the  owner- 
ship of  the  United  States  in  the  fur-seals  found  in  the  Bering  Sea,  and 
base  upon  that  ownership  a  governmental  industry  of  great  value  to 
the  revenues.  They  punisli  with  sev«'rity  any  person  who  destroys 
this  property  or  ijiterferes  with  tiie  agents  or  lessees  of  the  I  ,ited 
States  in  its  numagement,  and  they  provide  for  the  lease,  to  theii  own 
citizens  under  careful  regulations,  of  the  privilege  of  taking  seals. 

Great  Britain  has  not  assumed  and  could  not  assume  such  u  relation 
as  that  to  the  fur-seals  in,  or  resorting  to,  Bering  Sea,  because  it  (!an 
not  claim  them  rafiouc  soli.  It  sets  up  no  claim  of  ownership  in  the 
fur-seals,  but  denies  that  ownership  in  them  is  jiossible  until  the  ani- 
mals have  been  captured  or  killed. 


U 


I 


55 


u 


The  respective  '^nntries  occupy,  therefore,  very  dittoreiitrehitions  to 
this  subject.  A  (le«;Iariition  of  the  right  in  favor  of  tlie  citizens  of  the 
United  States  to  take  fur-seals  in  Bering  Sea,  if  made  by  thii,  tribunal, 
is  a  dechiration  tliat  the  statutes  of  the  Tnited  States  that  tbibid  8u«;li 
talking  are  of  no  validity  and  shonhl  be  repeah'd,  while  the  muna 
declaration  when  made  in  favor  of  IJritisli  subjects  is  in  perfect  accord 
,.  ith  the  laws,  policy,  and  contentions  of  that  country. 

This  obvious  impediment  to  a  decision  as  to  the  right  of  pelagic  seal- 
ing in  Bering  Sea,  under  which  the  i»ower  of  the  ITnited  States  over  her 
own  citizens  would  be  called  in  <iuestion,  contiiies  tlie  inciuiry  to  the 
simple  proposition  whether  tli-j-  I'nited  States  have  a  property  in  the 
seals  in,  or  habitually  resorting  to  lieriug  Sea,  and  the  nature  of  that 
property. 

The  crucial  test  of  the  right  of  tlu?  United  Statesto  property  in  fur- 
seals  that  resort  to  Jeering  Sea,  whetlier  that  right  imi)lies  a  pnlect 
ownership  of  the  seals  or  an  interest  in  the  usufruct  of  the  herd  fi>.  the 
sui)port  of  a  legitinnite  and  useful  industry,  is  nuule  by  the  treat','  to 
turn  upon  the  question  whetlier  IJritish  subje(!ts  have  the  u.irestvicted 
right  to  take  seals  on  the  high  seas  as  free-swimming  animals  that  are 
ferw  naturiv.  This,  therefore,  is  the  main  question  in  the  case,  and 
draws  within  its  influence  every  other  question  presented  to  I  he  Tribu- 
nal of  Arbitration,  except  those  questions  that  ralate  peculiarly  to 
Bering  Sea,  I  have  already  dis«-usse(l. 

This  claim  cf  right  (o  take  fur  seals  on  tlie  hii'.li  seas  is  asserted  as  a 
private  and  personal  right  of  every  person  who  ^oc  upon  the  high  seas 
uniibi  ?.  recognized  natioinil  tiag;  and  tlie  employniv-nt  of  the  flag  for 
that  purpose  is  not  recpiired  to  belegitiiinited  by  a  license  to  lish. 

No  government  has  asserted,  m  ever  will  assert,  the  riglit,  as  a  gov- 
ernment, to  employ  its  sovereign  powers,  or  its  war  fleets,  in  this  busi- 
ness, for  the  pnrpose  of  increasing  its  revenues.  Siuih  conduct  by  a 
government  would  be  regarded  as  a  'lisrepiitable  invasion  of  the  high 
seas  for  its  own  aggrandizement  and,  wlieii  it  should  come  in  conflict 
with  the  interests  of  tlie  people  ot  other  countries,  the  invasion  would 
be  regarded  as  a  national  olt'eiise. 

The  case  would  be  quite  di Here  it  il  the  purpose  of  the  government 
was  to  protect  a.  bona  tide  claim  oi  ;ti(iperty  in  seals,  against  destruc- 
tion. If  in  ([uest  of  seals  to  wliicli  no  claim  of  proix'rty  was  asserted  by 
a  government  it  should  send  out  its  fleets  to  gather  revenue,  or  to 
destroy  such  property,  claimed  by  another  government,  tlie  necessary 


#.i 


O^K 


66 


HI 


result  would  be  a  disturbance  of  the  peace  and  probably  a  hostile  col- 
lision. The  case  is  altered  in  degree,  but  not  in  its  nature,  when  a 
government  sustains  and  adopts  the  rights  of  its  peojile  to  destroy  a 
property  or  industry  claimed  by  another  nation.  If  such  government 
could  not,  under  the  usage  of  nations  or  Just  principles  of  interna- 
tional law,  thus  enrich  its  treasury,  it  is  difhcult  to  see  on  what  prin- 
ciple it  could  suppo^'t  its  ])eople  in  such  conduct  for  their  private  gain. 
In  either  case  the  sentiment  of  justice  entertained  by  the  civilized 
nations  would  sustain  the  power  that,  in  good  faith,  claimed  the  right 
to  own  and  protect  the  fur  seals  for  the  benelit  of  the  commerce  of  the 
world,  rather  than  the  nation  tliat  denied  the  right  of  property  in 
seals,  until  they  are  captured  and  killed,  and  claimed  the  right  to  make 
property  of  them  only  by  indiscriminate  and  destructive  slaughter. 

In  this  treaty,  and  in  all  the  diplomatic  contentions  that  have  led  to 
its  conclusion,  both  Governments  have  admitted  that  property  in  seals 
may  be  acquired,  protected,  and  preserved,  at  least  to  the  extent  of 
protecting  and  preserving  them  by  their  concurrent  regulations,  and 
they  have  agreed  to  apply  the>  e  conceded  facts  to  certain  seals  that 
habitually  resort  to  the  waters  of  Bering  Sea.  Tliese  questions  are  vir- 
tually removed  from  the  field  of  doubt  or  disputation  by  the  terms 
of  the  treaty  under  which  the  Tribunal  of  Arbiti-ation  is  acting. 

Great  Britain  now  asserts  that  the  property  iu  seals  ca'\  be  acquired 
only  by  capture,  which,  under  the  practice  of  pelagic  hunting,  as  con- 
ducted by  its  subjects,  means  that  such  property  can  be  acquired  oidy 
by  killing  the  animals. 

The  United  States  asserts  that  property  in  seals  may  bt  acijuired 
while  they  live,  and  without  actual  capture.  As  to  the  right  of  prop- 
erty in  the  individual  animals,  this  is  the  only  form  of  issue  that  is 
joined  between  the  parties  to  this  treaty. 

As  to  the  proper  protection  and  preservation  of  seal  life  to  which 
the  Governments  are  both  solemnly  pledged  in  this  treaty  Great 
Britain  contends  that  taking  them  at  sea  is  a  better  method  than 
taking  them  on  laud,  and  is,  therefore,  the  proper  method;  while  the 
United  States  claim  that  the  only  method  of  taking  seals  that  can 
properly  protect  them  is  by  selecting  the  animals  for  slaughter,  and 
that  this  can  be  done  on  the  land  and  can  uc»t  be  done  in  the  water. 
The  killing  of  the  animals  is  included  in  each  of  these  contentions  as 
the  only  way  in  which  they  can  be  made  useful  to  mankind;  and  the 
time,  place,  and  method  of  killing  them  that  is  best  adapted  to  the  protec- 


57 

lion  and  prenerration  of  saih  in  ihe  class  or  herd  tliiit  luibitiinlly  rosort 
to  the  wnteis  of  lU'iiiiff  Seii  is  tlic  loal  iiuiuiiy  "•I'oiK'iiruiiijr  tlie  pres- 
ervation of  the  fur  seal  in,  or  liabitually  resortiiij;  to,"  Beriiij>'  Sea  (lat 
is  subiiiitti'.l  to  the  Arbitrators.  All  the  other  <iinstioiis  presented  tor 
consideration  or  decision  by  the  Arbitr  tors  lehite  alone  to  the  i)o\vers 
that  either  (ioveriinient  may  einidoy  and  their  jurisdictional  rij^hts  to 
enforce  their  respective  contentions,  or  that  both  shonhl  employ  con- 
currently, to  protect  and  preserve  seal  life,  outside  of  their  territorial 
limits. 

Is  it  true,  as  it  is  asserted  by  the  United  States,  that  property  iii 
fur  seals  may  be  acquired  while  they  are  alive  and  without  actual 
capture?  That  depends  to  a  j>reat  dejjree  upon  the  value  of  the  uses 
to  which  they  are  put  and  the  certainty  and  refiuhuity  with  which 
they  may  be  subjected  to  those  uses,  and  these  considerat'O.is  relate 
to  animals  as  classes,  and  to  tiieir  habits  as  a  class,  and  not  to  the 
peculiarities  of  the  individuals.  Some  individuals  are  frecpiently  found 
among  aninmls  that  are  everywhere  classed  as  domestic  which  are  aa 
wild  and  tierce  (or  timid  as  the  wise  may  be)  as  the  wildest  of  animals, 
such  as  Iwjrses,  cattle,  sheep,  swine,  poubiy,  and  dogs.  And  some  of 
the  wildest  and  most  ferocicnis  aninmis  have  been  s(t  domesticated  by 
training  as  to  become  harndess,  and  even  serviceable,  or  prolitable  in 
a  high  degree,  such  as  hunting  leopards,  hawks,  carr-  Mants,  elephants, 
and  even  bears,  lions,  and  tigers.  But  these  exceptional  instances  of 
domestication  by  training  prove  notliiug  as  to  the  general  nature  or 
habits  of  the  classes  of  anima's  •!>  v/liich  they  are  found. 

If  a  class  of  animals  is  valuable  fcv  the  uses  of  mankind  and  is,  by 
habit,  drawn  within  reach  of  man  i)eri()dically,  with  reguhn-ity  and 
certainly,  the  nation  that  thus  acquires  a  settled  and  peculiar  power 
of  control  over  it  on  land  may  base  a  legitimate  industry  upon  the  unite- 
rial  it  aHbrds,  and  may  declare  the  animals  to  be  its  property.  A 
nation  so  situated  may  certainly  nuike  sucli  an  assertion  and  declara- 
tion of  ownership  in  the  entire  class  of  such  auinnils  as  against  the 
right  of  its  own  people  to  treat  them  as  l)eing  wild  animals  and  re« 
hkIUiis,  and  in  that  sense  and  to  that  extent  at  least  it  may  exercise 
ownership  over  them  without  cJipturing  them.  Aninmls  that  are  classed 
as  being  domestic,  are  i)rotected  by  a  legal  iM'esunv()tiou  o^'  ownership, 
however  wild  they,  in  fact,  may  be.  Auinnils  domesticates  by  train- 
ing are  sheltered  l)y  the  same  jjiesumption  of  law,  until  t'ley  have 
resumed  their  wild  condition. 

Wild  animals,  called  game,  are  not  protected  by  legal  flctions  but 


58 

by  legislative  enactments.  Their  protection,  when  it  is  accorded, 
nmst  be  by  law,  because  it  trenches  upon  the  natural  rijfhts  of  the 
peoi»lc  to  capture  and  appropriate  them.  TIjc  State  assumes  a  right 
of  public  appropriation,  and  deprives  its  subjects  of  tin;  right  to 
appropriate  such  animals  and  regulates  or  prohibits  its  exercise.  If 
the  State  takes  the  furtiier  step  of  declaring  by  law  that  it  has 
appropriated  these  wild  animals  to  the  uses  of  (Joveniment  and  that 
its  [)ossession  and  ownership  are  complete  by  legal  construction  and 
witiiout  taking  actual  possession  of  th«!m,  they  become  the  prop- 
erty ol"  the  State  Wherever  those  laws  are  in  force.  Thus  all 
ganu'.  laws  are  based  on  the  sovereign  right  to  api)i"oi)riate  wild 
animals  by  the  state.  This  right  of  government,  for  it  is  such  a 
right,  is  illustrated  in  a  forcible  way  by  laws  giving  bounties  for  the 
destnu-tion  of  wolves  and  other  predatory  animals.  If  a  man,  for 
reasons  of  his  own,  should  (tlaim  that  he  was,  ratione  .so/i,  the  owner  of 
a  cave  that  sheltere<l  wolves  and  therefore  of  the  wolves,  he  could  not 
resist  the  right  of  the  state  to  cause  their  destruction  in  accordance 
with  law,  even  in  the  cave  where  thpy  were  bred  but  h'ft  uncon- 
flned  to  go  forth  at  will  and  maraud  upon  the  pro]>erty  of  others. 

The  power  of  the  state  in  such  case  is  not  based  on  its  judicial 
function  of  s\ippressing  nuisance,  but  on  its  ownership,  when  it  chooses 
to  assert  it,  over  wildjininials. 

It  may  be  and,  in  a  general  sense,  it  is  true  that  the  private  owner 
of  the  soil  on  which  a  wild  animal  is  bred  can  only  acquii-e  actual 
projjcrty  in  such  animal  by  its  capture,  but  that  is  far  from  being  true 
as  to  the  sovereign  power  in  a  state.  A  state  that  can  not  dispose  of 
what  is  rcH  ntiUiuH,  within  its  own  jurisdiction,  is  wanting  in  an  essen- 
tial power  of  sovereignty.  It  could  not  otherwise  dispose  of  escheats, 
waifs,  derelicts,  or  forfeitures  that  occur  without  judi<'ial  procedure,  as 
numydo  occur.  If  these  propositions  are  true  it  is  unciue^tionable 
that  a  state  may  acquire  property  in  anything  suscei)tible  of  ownership 
that  is  res  niiUius,  found  within  its  jurisdiction,  by  a  simple  declaration 
of  law  and  without  taking  it  into  actual  possession.  The  property  so 
acquired  is  the;  creature  of  municipal  law. 

The  United  States  has  done  all  that -is  necessary  to  establish  its 
ownership  of  fur-seals  by  municipal  laws  that  are  operative  against 
everybody  within  the  limits  of  their  jurisdiction,  whether  those  limits 
include  all  the  waters  of  Bering  Sea  or  only  the  land  and  waters  with- 
in the  ordinary  3-mile  limit.    Within  those  limits  this  declaration  of 


59 


the  supreme  lejujiHlatuie  establishes  pioperfy  in  fur-seals  and  appropri- 
ates it  to  the  IJiiitcd  States  while  tiie  seals  are  liviii^i'  and  without  the 
necessity  of  eapturiii};  tlieiii.  When  tliis  ]>ropeily  is  loiiiid  outside  tlie 
limits  of  th<!  jiiris<lietioii  of  tiie  I'liited  States  the  question  arises  for 
the  tirst  time  us  to  iiow  fartlie  ]ieo])le  of  otlier  eouutries  are  bound  to 
respect  the  title  asserti'd  by  tiie  United  Slates.  As  t«)  the  people  (»f  the 
United  States,  they  are  bound  to  respect  this  title  of  their  (Jovernment, 
if  80  required  by  law,  wherever  the[r  allegiance  binds  tliem,  and  tlie 
law  <b)e.s  bind  them  to  respect  the  pniperty  of  tiie  Iniited  States  wher- 
ever it  may  be  found. 

No  rule,  code,  or  system  of  law,  municipal  or  international,  is  lue- 
seribed  or  alluded  to  in  tlie  treaty  as  tlic  guide  of  the  tribunal  in 
determining  any  question  subnutted  to  tiiem. 

The  oidy  allusion  that  is  made  in  the  treaty  to  laws  or  jurisprudence 
is  that  the  Arbitrators  "should  be  jurists  of  distinguished  reputation 
in  their  respective  countries."  This  requirement,  as  well  as  the  nature 
of  the  subject,  (piestions,  and  jioints  submitted  to  the  tribunal  tor  exam- 
ination, is  a  suHieient  indication  that  where  the  recognized  principles  of 
international  law  or  the  municipal  laws  of  the  respective  countries 
furnish  a  basis  and  guide  to  ascertain  and  admeasure  the  rights  of  the 
respective  treaty  powers,  they  shall  be  followed.  15ut  if  there  are 
not  such  precedents  and  enactments  the  declaration  of  their  respective 
rights,  outside  the  limits  of  their  exclusive  jurisdiction,  is  within  the 
competence  of  the  tribunal,  and  also  the  declaration  of  their  duty 
concerning  the  protection  and  preservation  of  the  fur-seals  in  question. 

The  United  States  assert  their  right  of  ]»ropeity  in  the  fur-seal  in 
question  while  they  are  alive  and  without  the  in(;ident  of  actual  cap- 
ture : 

Firfit,  as  a  right  by  prescription  derived  from  Russia,  and  acqt  ie:5ced 
in  by  Great  Britain;  and  their  usefulness  to  the  (Jovenunent  a. id  the 
peojile. 

/Second,  as  a  right  established  by  law  within  its  domain,  that  is  not 
imi>aired  by  the  necessary  and  te)iiporary  absence  of  the  seals  in  search 
of  food,  titlier  while  they  aie  inhabiting  the  seal  islands,  or  when  they 
retreat  from  them  on  their  winter  excursions  into  the  Pacific  Ocean; 

Third,  as  a  right  of  property  that  is  tlie  necessary  result  of  the 
habits  of  the  animals,  and  their  natural  and  eoiiii)iiIsory  relation  to  the 
Pribiloflf  Islands; 

Fourth,  as  a  right  of  property  growing  out  of  the  necessity  of  gov- 


•ffj 


60 


«>riiiii(;iital  control  <»t'  tlic  fur-Hwils,  to  prevent  tlieirdostiuction,  and  tlic 
alU'Kt'd  'iH't  tliat  sucli  (.'ontrol  can  be  cflicicntly  exercise*!  (»nly  by  tlie 
(loveiinnent  wliose  tenitory  is  occupied  by  tlieni  at  tlieir  biitli,  and 
wliilc  tin-y  are  tlieir  property,  rntionc  impotniiia; 

Fifth,  UH  a  right  of  property  based  on  tlie  fact  tliat,  witli  the  aecpiics- 
conce  of  ail  nations,  established  by  the  fact  that  no  objection  or  pr«»test 
was  nnide  or  adverse  acti(»n  was  taken  by  any  nation  for  a  period  of 
ninety  years,  an  industry  was  established,  dependinf--  for  its  snpi)ort 
upon  the  preservation  of  the  stock  of  fur  seals,  wliicli  will  be  destroyed 
If  indiscriminate  pelafjfic  hunting  is  furthei'  permitted. 

This  is  the  Hrst  international  C(uitroversy  that  has  arisen  as  t(»  the 
right  of  projjerty  in  or  protection  of  fur  s<>als,  and  tiiere  is  no  case,  in 
point,  to  which  reference  can  be  made  as  settling  the  law  of  nations  on 
the  subject.  Hut  there  la  no  right,  recognized  by  international  law, 
that  is  opposed  by  the  case  of  Great  Britain  to  either  of  these  claims  of 
the  Tnited  States  to  the  ownersiiij)  of  the  Inr  seals  in  (|U('stu)n,  excejit 
the  right  of  free  lishing  in  the  open  sea.  This  rigid  is  claimed  for  its 
subjects  by  the  Government  of  Great  Britain,  and  is  made  to  include 
fur-seals,  as  free  swimming  animals, /er«'  vattirfc. 

The  universal  right  of  free  fishing  in  the  oi)en  sea  is  established  in 
the  custom  of  nations,  which  is  the  law  of  niitions,  aiul  is  not  disputed 
by  the  I'nited  States  when  it  is  conducted  in  a  just  and  reasonable 
manner  and  against  fishes  or  animals  tiiat  are  res  nidliiai. 

The  free  right  of  lishing  can  not  be  exercised  to  make  a  lawful  cap- 
ture of  fur-seals  if  they  are  not  wild  animals,  or  if  they  are  aninnds 
wild  in  their  nature,  but  have  been  lawfully  approi»riatcd  by  a  govern- 
ment and  are  at  large  in  the  ocean  with  the  purpose  of  returning  to 
the  dominion  of  the  owner,  ov  under  the  conii)ulsion  of  an  instinctive 
necessity  for  returning  to  the  domiiuon  of  the  owner,  which  the  ani- 
mals habitually  and  periodically  obey. 

The  right  claimed  by  Great  Britain  is  in  every  sense  a  right  to  hunt 
and  to  kill  game.  The  seals  are  never  taken,  as  sometimes  fishes  are, 
for  i)urposes  of  pro])agation,  but  v'dy  for  their  value  when  they  are 
killed.  The  arts  of  fishing  with  hook  and  line  and  bait  are  never  iua<',- 
ticed  as  to  fur-seals  and  would  be  utterly  without  success.  Catching 
them  with  seines  or  nets  is  impracticable  as  an  industry  and,  when  prac- 
ticed, only  small  ainnuds  are  captured  and  none  are  taken  alive.  That 
is  only  a  method  of  capturing  them  by  drowning.  The  death  of  the  game 
is  the  only  means  of  capture  at  sea,  and  that  is  conducted  with  the  har- 


4 


no 


'■ 


.. 


61 

poon  and  the  gun— deadly  weapons.  T\\v  linnter  attacks  every  seal 
within  nuigcofliis  weapons  without  diacrimination  or  forbearanee.  His 
success  depends  entirely  upon  indiseriniiiiitte  attac^k  and  shmnlitvi',  I'oi- 
lie  can  do  no  loss  than  tlnit  if  he  hunts  with  any  siicc^vss.  His  torhear- 
unee,  after  he  has  captured  his  game  witli  seine  or  hook,  uiiiv  releiise  it 
alive  if  it  is  found  to  he  under  ag<^  or  size  and  it  will  grow  to  its  full 
size;  but  capture  of  the  fur  seal  in  the  oi)en  sea  is  sure  and  instant 
death,  and,  as  to  the  herd  or  species,  it  is  swift  and  inevitable  destrue 
tion. 

ff  this  is  "free  fishing"  it  is  sudi  fishing  as  no  civilized  nntion  would 
tolerate  within  its  own  territory  in  respect  to  any  fish  or  wild  aniiiiiil 
as  useful  and  ns  helpless  as  fur  seals.  No  civilized  nation  that  has 
seal  rookeries  witlii:;  its  territory  has  o!  ittcd  to  ])rovide  laws  for  their 
protection  against  :  uch  liunting  to  the  lull  extent  of  its  powers.  Tlir 
indincriiiiinate  liliimf  of  fur-seah  in  not,  and  nvrcr  trill  he,  mnciioncd  by 
the  Hlatiitr  lau-x  of  ttnif  civilized  eountrff. 

This  right  of  indiscriminat*'  slaughter  of  fur-wals  on  land  and  sea 
can  otdy  bo  traced,  and,  in  this  case,  has  only  been  traced,  as  to  its 
origin,  to  a  custom  of  the  savage  Indians,  who  were  forced  to  adopt  it 
as  a  means  of  living.  It  is  said  to  have  thus  gained  its  root  in  the  law 
of  nations.  Civilized  nations  that  have  gained  dominion  over  these 
savage  tribes  have  taken  control  of  the  subject  and  have  reversed  these 
laws  of  the  savages  in  their  application  to  their  civilized  subjects,  and 
have  forbidden  them  to  enjoy  tliis  unrestrained  privilege.  But,  in  scune 
instances,  they  have  permitted  the  savages  to  continue  the  practice, 
because  it  is  confined  to  short  distances  from  the  shores,  and  is  con- 
ducted with  such  weapons  and  in  sucli  manner  as  is  not  seriously  det- 
rimentiil  to  the  fur  seal  species.  Moreover,  the  fur-seals  ai »  a  source 
of  food  supply  aud  of  raiuicnt,  to  deinive  them  of  which  would  imperil 
their  exist(!nce.  It  is  also  cheaper  to  peruiit  their  slight  rjiids  on  tlie 
fur-seals  than  it  would  be  to  feed  and  clothe  them. 

Finding  this  right,  of  savage  origin,  tiins  forbidden  or  restrained  by 
the  munici]»al  laws  of  all  nations  interested  in  the  subject,  and  that  the 
uniform  course  and  current  of  jmblic  opinion  of  the  nations  is.direeted 
to.thiseud  for  tlie  purpose  of  preserving  the  fur  seal  species,  are  we  to 
conclude,  in  the  absence  of  any  direct  or  conclusive  rule  of  interna- 
tional law,  that  there  is  a  ininciple  or  rule  to  be  found  in  the  laws  of 
nations  that  sustains  and  ui)holds  tlie  nni-estraiued  right  as  it  existed 
among  the  savages  to  hunt  or  fish  for  fur-seals  in  the  oi)en  sea  in  a 


I 


63 

way  and  at  timos  niid  places  wlioic  (In-  priK'tic*'  iiisuros  the  Kpoedy 
tioHtriit'tion  of  tilt'  spccii'sf 

Tlio  iiittTiiatidiial  law  is  a  fjrowtli,  iiiul  it  is  (lin'cted  and  Hliajiod  by 
tlio  t^xp««ric'iH«'  and  lln^  snlatc  jnd},'nH'iit  otniiinkind.  In  its  jjiowtli  it 
liaHdis])lii*-cd  many  rules  and  dttj^nias  that  lniv<'  ])i()Von  to  bo  ini])edi- 
nu'iitsto  tlio  nnii'cli  or<Mvili/ation.  Anion;;  the  most  inipottant ottlu'se 
concrete  r>d('sthat  Inive  tluis  been  dotlironcd  is  that  law  of  nations  whicli 
pivc  to  Russia  the  right  to  (b'clarc  the  Sea  of  Okhotsk  and  IJcring 
Sea  to  be  dosed  seas.  That  was  the  internaticuial  law  when  they  were 
discovered  and  occupied  by  that  jHtwer.     It  lias  since  been  changed. 

IJussia,  in  1Hi*4,  yielded  that  <'laim  to  the  advancing  growth  of  inter- 
national law,  but  did  not  yield  to  jielagic  hunters  the  riglit,  in  those 
waters,  to  destroy  fur  seals  indiscriminately.  Russia  saw  that  the 
sentiment  of  th<^  world,  to  which  she  snrrendered  tlie  right  of  free 
fishing  and  free  navigati(Mi  in  Bering  Sea,  wonld  protect  ■Jier  against 
the  then  niimentioncd  and  unclaimed  right  of  visiting  destruction  upon 
lier  seal  herds  and  the  industry  they  supiuirted,  upon  the  pretense  of 
t»ie  right  of  free  lisliiiig  accorded  to  the  United  Statesand  (Jreat  Britain. 

Jn  this  formative  and  progressive  growth  of  international  (»pinion  it 
may  well  be  asserted  that  tlie  light  of  pelagic  hunting,  with  its  attend- 
ant right  of  indiscriminate  slaughter  of  fur-seals,  has  lost  the  authority 
of  its  ancient  origin  among  savages  and  is  no  hmger  a  concrete  rule 
or  principle  or  even  a  reputable  dogma  of  iiiternatioiial  law,  in  the 
application  that  Great  Ibitaiii  makes  of  it.  International  law  is  based 
on  the  same  recognized  elements  of  right  government  that  are  lit  the 
foundation  of  nearly  all  the  municipal  laws  of  the  great  civilized 
powers.  This  concordance  in  the  elements  and  structure  of  the  two  sys- 
tciKS  of  law  is  established  by  many  rules  that  are  common  to  the  munic- 
ipal laws  >)f  such  nations.  In  none  of  them  is  there  a  clearer  or  more 
distinctly  recognized  doctrine  than  that  of  rights  acquired  by  prescrip- 
tion. 

In  the  Ijnglish  common  law  an  abscdute  title  is  acquired  to  any  prop- 
erty after  it  has  been  in  the  open  possession  of  the  occupant  and  those 
Indding  under  him  foi'  the  p«riod  of  twenty  years.  This  is  a  rule  of  re- 
I)ose  adopted  for  the  peace  of  society.  In  those  features  it  is  even  more 
useful  bctw  eeu  nations  than  it  is  between  individuals.  So  potent  is  this 
rule  that  tli<5  courts  of  both  countries  have  uniformly  declared  that  any 
grant,  will,  dted,  or  statute,  will  be  conclusively  presumed  to  exist,  that 
is  ne(!es8ary  to  support  the  title  of  the  party  who  has  held  uninterrupted 
possession  for  twenty  years. 


" 


•' 


t 


iismji 


68 


*• 


No  just  reason  (^nii  bo  stated  why  this  wlin'i  omo  rnle,  fouiuled  in 
the  pnhlif  policy  of  l)oth  conntiics,  slionid  not  apply  to  tliciiitoiiiatioiial 
ri};hts  in  eontrovcisy  between  them,  and  shmdd  not  include  every 
inter»'Ht  in  any  property,  indnstry,  or  privilege  that  has  been,  for  the' 
period  of  prescription,  in  the  exclnsive  control  and  enjoynient  of  the 
claimant.  The  opposing?  rijfhts,  whatever  they  may  be,  are  lost  niuler  a 
unclnsive  presnmption  of  a  superior  title  in  the  actual  oiM-upant. 

For  more  than  seven  tyyearsC  I  reat  Britain  stood  by  andfidly  understood 
that  ilussia  had  the  exclusive  usufruct  of  the  Alaskan  seal  herd  and 
the  exclusive  control  over  them  without  makin;;  any  (luestiou  of  that 
rij^ht.  If  the  projierty  had  been  an  island  in  the  sea,  to  which  (Ireat 
Mri*^ain  hud  the  lu-tual  ju-io;-  rijjht  by  discovery  and  occupation,  her 
title  wouhi  have  been  lost  if  she  had  sulfeied  Russia  to  occupy,  claim, 
ai'd  hold  the  islan<l  for  twenty  year*  under  an  open  and  uninter- 
rup^^ed  possession. 

The  theater  on  which  these  contlictin/j:  rijjhts  are  enforced  has  much 
U}  do  with  the  limitations  and  restrictions  under  which  they  are  to  be 
exercised,  if  the  aninmls  are  fcrw  natune  and  are  so  classed  by  this 
tribunal.  If  such  aninuils  leave  the  land  on  which  they  were  raised, 
and  are  found  and  killed  on  the  land  of  another,  they  belong  to  him  on 
whose  land  they  are  killed,  because  they  are  presumed  to  have  escaped 
to  a  new  place  of  habitation,  and  the  owner  of  that  phnte  takes  them 
ratione  noli,  as  if  they  had  been  born  and  raised  on  his  land.  Jbit  if 
they  are  killed  on  the  highway  they  are  the  property  of  him  on  whose 
land  they  were  born  and  raised,  uidess  they  are  shown  to  have  escaped 
from  his  laud  in  quest  of  their  former  freedom  or  under  the  wild 
instinct  of  going  at  large,  free  from  nnin's  control. 

If  seals  are  made  property  by  the  laws  of  the  United  States,  and  are 
found  on  the  ocean  traveling  in  search  of  food,  the  owner  has  the 
right  to  be  there  and  to  take  (!are  of  them.  If  his  presence  is  not  nec- 
essary, because  it  is  useless  for  the  purpose  of  protecting  them,  and  if 
they  are  identified  as  the  seals  that  habitually  resort  to  the  Pribilof 
Islands  by  their  being  found  in  the  eastern  part  of  the  ocean,  tiie 
law  regards  the  animals  as  being  in  the  constructive  possession  of 
the  owner.  Upon  this  rule  of  constructive  possession  the  security  of 
all  (!ommerce  and  all  personal  chattels  most  largely  depends.  It  is  an 
all-pervading  element  of  property.  Possession  of  a  bill  of  lading,  or 
.even  an  oral  contract  for  freighting  carries  with  it  the  possession  of  a 
ship's  cargo  of  fur-seal  skins  that  the  owner  has  never  seen,  and  attends 


mmmmm 


mmm 


"' 


[  ■' 


I 


'  i\ 


64 

them  aronrid  tlie  eart'i,  on  land  and  sea.  All  he  is  required  to  do  to  make 
his  poHsesHioii  coiiii>U?tc  is  to  identity  liiH  property  in  any  way  he  eaii. 
Aiid,so,if  tlie  I'nited States  own  tiiefiir-scjils  before  tlit'ycros.sthe.5  mile 
limit,  8.»d  have  a  eonstriietive  legal  possession  of  tliem  uj)  to  tiiat  line, 
and  if  the  seals  are,  fi»r  instanec,  nursing  mothers  ;j;oinj,'  after  tiood  to 
nurture  their  pups  on  shoie,  with  a  li.vod  p»u-[)ose  of  i-eturning  to  it, 
the  eolistruetivi'.  possession  of  the  animals  is  set'ured  to  the  United 
States  after  tiiey  cross  t\n-.  .{mile  limit,  Without  tliis  there  could 
be  no  security  for  property  in  iiuimais  ^hen  they  are  not  on  the  own- 
er''s  land,  e^eu  when  they  are  within  his  view  and  he  is  i^uardinfj; them 
in  tlie  best  way  he  ean. 

If  the  seals  are  wihl  animals  belonging  to  till'  United  Htat^s  by  the 
deelaration  of  positive  law,  or  raiiont'  >ioll,  or  fotiotie  hiijioteiitia,  or  by 
actnal  eaptiire,  and  if  this  proiierty  is  not  lost  witen  the  animal  goes 
into  the  orean  for  food  or  pU'asnre,  witli  the  intent  to  return,  or  undvr 
an  instinct  that  <hnninate>>  its  moviMni'iits  and  ItMvi's  it  without  an 
option  as  to  returning,  one  wlioeaptnresiit  when  thusatlarge  deprives 
the  United  States  of  their  pinpcity.  If  the  eaiitor  is  u  citizen  of  the 
United  States  he  is  guilty  of  the  double  wrong  of  breaking  the  pre- 
serve of  the  United  States,  which  is  closed  as  to  hijiii,  and  of  taking  its 
property.  That  is  poaching,  if  the  eii|,>tor  is  a  British  sub.hHjt  he 
comuuts  a  tiespuss  on  tliii  property  of  the  United  States,  because  he 
found  it  at  a  jilaee  in  the  open  sea  to  which  it  went  lawfully  and 
where  it  v.as  constructively  in  tlic  lawful  jiossession  of  the  I'nited 
State.^, 

The  ease  might  be  difVercnt.  would  1)e  dilfcrcut  undei'  t;he  English 
common  law,  if  the  soal,  being  ;i.  will  aniiH!\K  shouid  enter  within 
Britisli  territorial  liiviits  and  there  be  sJiiin  or  captured,  lit  that  ease 
the  possession  would,  change  so  as  to  give  the  right  of  property,  ratioiie 
noli  to  tlijit  (jovernment,  and  thai  right,  (»r  that  lawful  power  ovei'  the 
animal  w<mld continue  while  it  remained  on  Lbitish  territ(»ry.  Btit  this 
is  the  only  instance  in  whicli  llie  I'nited  States  would  lose  its  right  of 
pro|)erty  in  the  Alaskan  fur-seal,  born  on  its  siil,  while  tlie  aiiiinm 
refeftcndi  ciintiiMied  t;>  control  its  inovements  in  its  visits  to  the  ocean. 

The  indt^linite  right  of  private  fisliiiig  in  the  open  sea,  in  favor  nf  an 
imlividiial,  is  loo  slight  and  ill  fonnded  to  overeoaie  the  right  of  prop- 
erty in  a  nation  that  is  trying  to  prevent  the  pehigi<;  hunter  from 
destroying  a  great  production  of  eommereisil  value,  a  source  of  revenue, 
aujd  m\  instfuiiuaifcality  of  government.     Not  that  the  property  rights 


I 


'«  ^- 


}iiii|ii|istraiiiiiiii 


I 


06 

or  lawful  privileges  of  any  man  are  lea.s  sacred  than  those  of  a  State, 
but  govoviuneut  implies  the  subonlination  of  private  righl  ,  in  a  neces- 
sary degree,  to  t!io  general  wclfaie,  and  this  is  the  first  vievr  of  all 
rigiits  tak(Mi  by  iiiteriiatioiial  law.  It  is  on  tiiis  principle  that  those 
two  (.Toverninents  have,  in  this  treaty,  substituted  their  international 
rights  and  powers  as  sovereigns  over  their  people,  and  all  their  rights 
respe-iting  fur  seals,  and  over  the  seals  and  the  rookeries,  islainls, 
waters,  and  their  lessees,  and  compel  them  all  to  yield  to  a  rule  of  inter- 
national law,  titat  the  sovereign  nations  alone  can  deal  with  the  inter- 
national rights  of  their  people.  If  they  should  extend  thecxisting  modus 
piri'iiiU  perpetually,  no  citizen  of  eitlnir  country  could  be  heard  to  make 
complaint  that  his  private  rights  had  been  thusdestroyed,  or  that  they 
were  i)rotected  by  any  law  that  could  save  them  from  the  i)owor  of  their 
own  government. 

If  all  the  facts  presented  in  this  case  establish  that  seals  are  property 
to  be  classed  as  domestic  or  domesticated  animals,  the  <'.laim  of  the 
right  to  hunt  and  destroy  tliem  anywhere  against  the  consent  of  the 
owner  is  without  foundation.  If  cattle  on  the  boundary  line  of 
Oanfida,  where  they  are  grazed  in  vast  herds,  and  are  almost  as  wild 
as  buffalo,  should  wtinder  across  the  border  of  the  United  States,  that 
Government  could  not  seize  them  witliout  a  violation  of  international 
law.  The  case  would  be  stronger  under  that  law  if  the  (iattle  were 
owned  by  the  Government  of  Canada,  or  Great  IJritain.  The  right  of 
property,  nitionr  soli,  would  not  a«'crue  to  tlie  United  States,  for  the 
rea.son  tliat  tJiey  are  domestic  animals  in  their  universal  classification, 
and  that  fiict  is  notice  to  the  world  that  they  ai'e  the  property  of  some- 
body, and  are  luit  res  nullim. 

Whether  fur-seals  are  fishes,  or  domestic  animals,  or  wild  animals,  is 
to  be  determined,  first,  by  the  <)ue8tioi)  wiiether  the  most  essential  facts 
of  their  existence  occur  during  (ho-i>eriod  oftlicir  lives,  on  the  land.  It 
is  i»ossible  to  nurture  them  on  Iniid,  by  using  proper  appliances  and 
food,  and  they  can  thus  be  nmde  to  increase  in  numbers,  but  that  pos- 
sibility only  i)roves  that  they  are  not  fishes.  This  is  demonstrated  in 
Paris  and  London,  and  elsewhere,  by  daily  experience.  It  is  not  pos- 
sible that  a  seal  can  be  born  and  reared  in  the  sea.  It  is,  therefore,  lo 
be  classed  as  :i  land  animal,  iis  its  creation  and  birth  can  only  occur 
on  laud,  and  these  facts  are  essential  to  the  existence  of  thisaninml. 

A  singulfir  faculty  of  the  male  seals,  at  least,  of  living  for  months 
on  land  without  taking  food,  allows  that  they  may  be  kept  out  of  the  sea 
11495  M 5 


h 


66 

for  one-tliird,  at;  least,  of  their  lives,  witiiout  iujury  to  tiiem.  If  dur- 
ing that  period  they  were  suiticii'iitly  fed.  there  seems  to  be  no  reason 
to  suppose  that  a  visit  to  the  sea  could  not  be  entirely  dispensed  with. 
Indeed,  thiw  is  done  in  menagericH  that  travel  inland,  wliere  lurseals  are 
kept  for  years  in  good  condition  without  once  entering  the  sea.  While 
the  sea  is  the  place  where  their  food  is  sought  and  found,  it  is  no  more 
the  exclusive  haunt  for  sncli  jmrposes  tlian  <lie  wild  mountains  and 
plains  in  America  are  for  the  nurture  of  cattle,  iind  sheep,  oi'  swine, 
or  turkeys,  or  tbaii  the  open  waters  of  the  sea  arc  for  the  nurture  of 
ducks  and  geese  that  are  classed  as  domestic  aniumls.  It  can  not 
be  the  food  or  feeding  grounds  that  distinguish  between  animals  as 
land  or  sea  animals,  or  as  being  wild  or  tame. 

In  the  case  of  all  these  animals  the  essential  and  controlling  iact  as 
to  their  classification  as  land  unin)als  or  as  fishes  is  that  they  can  only 
have  birth  on  the  laiul,  and  are  not  fishes  either  in  form,  structure, 
instincts,  habits,  or  the  necessities  of  existence.  They  can  not  breathe 
beneath  the  water. 

If  they  are  essentially  land  animals  the  question  of  their  dttnicsticity 
is  a  very  simple  one.  That  fact  depends  upon  their  usefulness  to  man, 
their  inability  to  escape  from  liis  contrcd.  and  the" certainty  and  regu- 
larity of  the  forces  that  oi)erato  to  subject  them  to  his  absolute  dis- 
I)osal.  In  these  respticts  the  seal  has  an  adaptation  and  fitness  for 
domestic  use  that  is  not  so  obvious  and  so  certain  and  easy  of  control 
in  any  other  animals.  Doniestication  of  other  animals  that  are  allowed 
freedom  to  come  or  go  at  i)leiisui'e  depends,  in  a  large  measure,  on  their 
cons<'nt.  In  the  case  of  the  fur-seal,  the  nature  of  the  iinimsil  and  th<5 
conditions  of  its  existence  through  a  series  of  years,  and  also  of  its 
increase,  compel  it  periodically  and  with  certainly  to  submit  itself  to 
the  jjower  of  those  who  own  and  occupy  two  small  islands  in  Bering  tSca. 
A  similar  climate,  similar  shores  and  coasts,  and  the  same  food  have 
for  many  ages  invited  them  to  select  other  homes  on  the  islands  and 
shores  of  the  same  sea.  They  have  never  done  so,  and  there  is  no 
grouiul  for  the  conjecture  that  they  ovn-  will.  The  Pribilof  Islands  bear 
the  marks  of  a  ]oug-«'ontiuued  residence  of  the  seals  in  vast  numbers 
upon  their  .shores.  The  rough  rocks  are  worn  smooth  from  their  haul- 
ing over  them.  What  are  called  the  parade  grounds  of  the  hollus- 
ehi(!kie  are  described  as  being  large  areas  of  sandy  soil  worn  and  eonj- 
pacted  to  the  sraoothiu^ss  of  a  floor.  The  carpet  of  fur  and  hair  felted 
together  in  the  interstices  of  the  rocks  and  in  the  sand  could  only  have 


I 


I 


wmmammmm 


mm 


67 

been  protliuicd  by  many  years  of  slHMbliiig  seasoius  in  whicli  it  was 
dejmKited.  In  all  tlie  close  examinations  that  have  been  made  by 
nijiuy  observers  and  experts  sent  to  the  coasts  and  islands  ot  Bering 
Sea  and  to  the  sonth  and  east  ot  it,  along  the  shores  and  islands  of 
the  Aleutian  chain  and  Ihe  coast  of  the  North  American  continent, 
not  a  sign  or  trace  of  any  rookeiy  or  hauling  gi-(innd  has  been  found 
except  upon  the  two  islands  of  St.  (Jeorge  and  St.  I'aul.  Neither  the 
evidence  nor  any  rational  deduction  from  it  conveys  the  least  conjee- 
tnre  that  they  ever  Inid  any  other  home. 

No  two  distiuct  classes  of  animals  have  been  or  can  be  dontestieated 
by  the  same  means.  Some  have  the  social  ijistinet  strongly  develoiM-d, 
as  dogs,  horses,  cattle,  and  shec-p.  Others  are  simply  obedient  to 
superior  jtower  and  skill,  as  the  eiephant,  ass,  bnti'alo,  llama,  and 
reindeei'.  Others  are  domesticated  through  their  greed  for  food  and 
jieed  of  protection,  as  swine  ar.d  poultry.  ^  Others  do  not  look  to  man 
for  any  of  these  means  ot  control  or  for  food,  as  the  fur-seals.  Yet,  in 
this  lowest  condition  o!  the  power  of  enforcing  or  inducing  domestica- 
tion by  the  ait  of  man,  the  result  of  domestication — the  dominion  of 
man  over  them — is  the  most  certain  and  the  eafeiest  of  enforcement. 
Filling  tiie  most  estact  requirements  of  domestication,  as  to  their  sub- 
jection to  the  will  of  nnin,  no  reason  exists  why  they  should  not  be 
classed  as  domestic  aninuils.  In  the  legishition  of  the  United  States, 
Russia,  Japan,  Chile,  and  the  liritish  coioniew,  vvhere  fur-seals  go 
ashore  to  breeil  and  to  shed  their  coats  of  hair  and  fur,  the  utmost  pos- 
sible protection  is  given  them  that  can  be  effected  by  nmnicipal  law. 

These  acts  of  protection  assume  the  rightful  and  full  control  of  the 
animals,  witiiin  these  respective  jurisdictions,  disregarding  all  claims 
of  citizens  or  subjects  to  rights  of  property  in  the  animals,  or  rights 
of  chase  for  the  purpose  of  converting  them  into  ])roperty.  Tliese 
acts  go  further  and  forl)id  hunting  on  land  and  sea  during  certain 
seasons,  and  in  certain  areas  of  the  ocean,  and  the  seals  are  a])pro- 
priated  by  these  Governments  for  revenue  purposes  through  leases 
and  licenses,  for  which  a  tax  is  i>aid.  And  even  these  privileges  are 
contiiu'd  only  to  the  citizens  of  the  respective  countries  and  colonies. 

Jn  the  British,  system  of  fur-seal  i)rotection,  the  only  country 
omitted  from  the  list  of  colonics  where  seals  are  found  is  Canada. 
It  has  no  coasts  or  islands  on  which  fnr-seals  habitually  land,  and 
bas,  therefore,  no  interest  in  any  rookery  that  reciuires  protection. 
Canada  lays  broadside  on  the  I'acific  Ocean,  near  to  the  highway  of 


68 


i 


the  fur-seals  in  their  anuual  migrations  in  search  of  food,  and  causes 
thein  to  be  waylaid  when  they  are  bearing  the  future  product,  on  which 
the  preservation  of  the  species  depends,  to  that  place  where,  for  all 
time,  so  far  as  we  know,  they  have  gone  to  beget,  deliver,  and  nurture 
their  oftspring.  It  has  also  a  location  near  to  the  narrow  passes 
through  which  these  seals  must  pass  on  their. jonrney  to  and  from  the 
i'ribilof  Islands.  There  they  are  waylaid  and  captured  without  dis- 
ciJKunation  as  to  age  or  sex  and  while  they  are  at  the  absolute  men^y 
of  the  hungers.  They  can  easily  concentrate  there,  in  the  open  ocean, 
with  vesPbIs  enough  to  exterminate  the  species  by  an  ambuscade  that 
the  serj,ls  can  not  possibly  avoid. 

If  Canada  shares  the  zeal  for  the  preservation  of  the  fur  seal  species 
professed  by  Great  Britain  in  her  correspondence  with  liussia  and  the 
United  States,  and  should  exhibit  practically  her  concurrence  in  the 
legislation  of  all  the  other  British  colonies  that  are  directly  interested 
in  fur-seals,  she  would  find  ample  opportunity  to  legislate  for  their  protec- 
tion. The  earliest  practice  of  pelagic  sealing  in  the  waters  of  the  North 
Paciflc  of  which  anything  is  definitely  known,  was  conducted  by  Indians 
in  the  Straits  of  San  Juau  de  Fuca,  one-half  of  which  ocean  highway 
belongs  to  Canada  under  a  treaty  with  the  TJnitM  States.  Teliigic 
hunting  is  still  coiulucted  in  these  straits;  and  it  is  from  those  waters 
that  nefirly  every  sealing  vessel  is  fitted  out.  It  is  there  that  the  prot<'c- 
tion  of  the  British  Hag  is  afforded  to  citizens  of  the  Unitwl  Slates  to 
shelter  them  in  violating  tlie  laws  and  jmblic  policy  of  their  own  coun- 
try. It  iK  in  those  wiitcrs  that  the  pelagic  c:itch  of  seal  skins  nrc  assem- 
bled and  sent  to  market.  Tlie  hunting  of  fur-seals  on  theocc^an  at  the 
passes  into  Boring  Sea,  and  in  that  sea  and  in  Russian  and  .Japanese 
waters,  is  a  great  leading  industry  of  the  inhabitants  of  Vancouver 
Island.  If  the  I'acittc  ports  of  the  Hiitish  jiossessions  in  America  were 
closed  to  such  traffic  the  seal  lierds  would  scarcely  need  other  protection. 

With  all  these  oppcu'tunities,  Canada  takes  no  part  in  any  legisliitit)n 
for  protecting  fur  seals  in  the  Pacific  Ocean  and  is  wholly  out  of  sym- 
pathy with  the  professions  of  Great  Britain  of  favor  for  these  Just  iind 
high  purposes.  Canada  seems  to  have  lU)  respect  (ov  the  oi)inion 
expressed  in  the  legislation  of  other  (iountries,  and  especially  by  all 
British  provinces  interested  in  the  preservation  of  fur-seals;  but,  to 
maintain  its  hold  on  the  seal  herds,  it  urges  (treat  Hritain  to  insist  that 
her  people  have  the  right,  under  the  pretext  of  fishing,  to  appropriate 
to  themselves  any  fur-seals  found  in  the  sea. 


69 


Great  Britain,  for  political  reasous,  applies  the  doctrines  of  protec- 
tion of  fur-seals  to  all  Uor  otlier  colonies,  and  (piotes  from  the  interna- 
tional law  tiie  establislied  riglit  of  "free  fishing"  in  justiticatiou  of 
('anada  for  a  i^ractice  tiiat  will  result  in  tlie  wholesale  destruction  of 
tiie  siiecies.  Wliile  sneli  (•oiit.entions  are  insisted  upon  by  tins  great 
l)(>wer,  it  would  be  only  injurious  to  the  iionest  portion  of  tiie  people  of 
the  United  States  for  ( Congress  to  enact  laws  to  punisli  pelagic  iiunting 
on  tlie  l'a(!ilic  Ocean.  Sucli  laws  would  only  cause  a  n^petitiou  of  tlie 
pra(!ticc  on  tiie  ocean  that  was  rife  in  Bering  8ea  before  the  modus 
vivenill  of  1891  was  established — that  is  to  say,  it  would  invit;e  dishonest 
and  unpatriotic  citizens  of  the  United  States  to  seek  the  shelter  of  the 
British  Hag,  wliile  in  its  name  and  uiuler  its  power  tliey  would  defraud 
and  disitonor  tlieir  own  country.  It  was  not  until  Bering  Hea  was 
closed,  partially,  to.pelagichuntingof  fur-seals  in  1891  and  18'.)li  that  this 
new  source  of  danger  to  the  seal  herd  was  understood  or  appreciated. 
The  results  of  closing  Beiing  Sea  to  peliigi<!  sealing  caused  scutlers 
from  (!anada  ami  the  l/nitt^d  States  to  concentrate  their  greatly 
increased  forces  in  hunting  the  herd  on  the  Pacilic  and  in  intercepting 
them  in  the  Aleutian  pusses.  This  was  not  known  until  after  the 
treaty  of  February  20,  18!>U.  This  is  a  new'and  danger<»us  condition 
which  the  ti-eaty  expressly  included  in  the  i)urview  of  the  powers  of  the 
Tribunal  of  Arbitration.  It  was  in  the  last  days  of  the  negotiation  that 
this  im|)ortant  phase  of  the  case  was  brought  to  noti(;e  and  provided 
for. 

The  (juestion  as  to  the  justification  of  this  pjan  of  "tisidng,"  if  it  is 
fishing,  is  as  new  in  international  law  as  the  occasion  that  gave  rise  to 
it.  If  it  )3  "fishing,"  the  method  of  it  is  new,  and  was  wholly  unknown 
when  the  right  of  fishing  anywhere  in  the  open  sea  was  recognized  in 
the  law  of  nations.  If  the  right  now  claimed  to  be  hnyful  under  this 
new  UKith'xl  is  a  total  departure  from  fishing,  as  it  was  jnacticed  when 
the  right  to  fish  was  established,  and  is  fatally  destnu'tive  of  the  spe- 
cies of  "fish"  against  which  it  is  employed,  there  is  no  warrant  tor 
saying  that  it  is  sanctioned  by  intern jitioual  law. 

The  abuses  to  which  this  prac^tice  must  lead,  as  already  developed  in 
two  years  of  experience,  show  that  the  claim  set  up  by  Canada  of  a 
right  to  "fish"  for  fur-seal  with  fleets  of  vessels  and  boats,  armed  with 
shotguns  an<l  prepared  cartridges,  and  to  kill  them  imliscriminately. 
has  but  one  element  of  the  established  right  of  free  fishing,  namely, 
that  it  is  conducted  on  the  high  seas.    Fishing  with  shotguns,  u  the 


M  * 


mmmmm 


70 


{ 


o(«aii  is  now.  It  is  an  iuuovatiou  tliat  destroys  the  subject  to  which 
it  applic'v  It' this  is  a  right  wliich  the  international  !»  kr  must  recog- 
nize, although  it  is  almost  universally  denounced  by  municipal  law,  it 
must  be  limited  to  a  reasonable  use.  as  all  privileges  are  limited.  As 
it  is  practiced  by  i)elagic  sealers  at  this  day  it  receives  the  condemna- 
tion of  internatio  lal  law,  because  it  sk.  ilices  and  destroys  the  benefits 
of  the  seal  iierds  to  the  commerce  of  the  world  and  imposes  t)n  the 
United  States  very  serious  burdens  in  i)reserving  the  seals  for  the 
private  advantage  of  persons  engaged  in  an  organized  hunt,  while 
denying  tiie  right  of  her  own  citizens  to  take  them. 

The  United  States  must  protect  tiie  seals  agiiinst  her  own  people  or 
else  they  will  be  speedily  destroyed.  If  in  (h»ing  this  nil  iier  care  and 
expense  are  turned  to  nnnght  by  a  rule  of  interiiiitional  hiw,  she  «!an 
only  abandon  the  seals  to  their  fate,  let  the  islands  become  barren 
of  all  value,  and  console  herself  with  the  reflection  thiit  her  sacrilicc 
adds  a  iwwer  to  the' international  law  that  is  more  authoritative  than 
the  judgment  (»f  all  the  nations  of  the  earth,  cx(!ept  Canada. 

It  is  a  new  and  very  dangerous  phase  of  the  rights  of  lishermen  that 
they  can  lawfully  combine  to  destroy  lisli  and  use  the  agencies  that 
are  necessarily  destructive  of  a  given  species  of  lish  under  the  pro- 
tection of  international  hiAv.  It  is  still  more  dangerous  if  they  can 
lawfully  waylay  the  fifb  at  narrow  i)assages  between  islands  and 
destroy  them  as  they  approa(;h  the  shores  and  bays  of  a  neighboring 
nation,  and  yet  more  dangerous  if  they  can  lawfully  form  a  cordon  of 
vessels,  with  great  luunbcrs  of  men  aimed  with  shotguns,  just  outside 
the  3-mile  limit,  and  can  kill  seals  that  are  frce-breathiiiig  as  well  as 
•free-swimming  aninutls,  whenever  they  rise  to  the  surfaeefor  air  and  come 
in  range  of  their  guns,  while  they  are  passing  to  and  fro  in  search  of  sus- 
tenance for  themselves  and  their  ofllspriiig.  Yet  all  these  combinations 
and  practices  are  lawful,  if  the  right  of  i)elagic  hunting  of  fur-seals  is 
the  same — no  more  and  no  less — with  the  right  of  iishiug  in  the  high 
seas. 

It  is  not  surprising,  in  view  of  such  serious  results  as  would  follow 
the  practice  of  pelagic  scaling,  and  have  already  lesulted  from  it, 
where  it  is  placed  (m  the  same  tooting  with  the  right  of  Ashing  in  the 
open  sea,  that  the  power  to  ordain  concurrent  regulations  for  its  con- 
trol, or  proliibiti(m,  was  given  to  a  Tribunal  of  Arbitration. 

It  is  only  by  regulations,  and  not  by  advice,  or  by  tlie  statement  of 
the  principles  of  law  that  govern  the  case,  that  these  matters  can  be 
settled. 


71 


WB 


Tlie  coiu'lusioiis  I  liave  reached  are : 

1.  That  the  United  States  have  a  property  in  the  seals  in  and  habit- 
ually resorting  to  their  islands  in  Bering  Sea. 

2.  Tiiat  this  property  is  in  the  lawful  possession  a-ul  control  of  the 
United  States  when  it  is  found  on  their  islands,  or  within  the  limits  of 
their  territ^.ruil  .jurisdiction,  and  they  have  the  exclusive  jurisdiction 
to  pr<^M',t  aiul  preserve  them  within  those  limits. 

3.  That  this  property  is  also  in  the  lawful  possession  of  the  United 
States  when  the  seals  are  found  in  the  open  ocean  and,  in  such  waters, 
they  have  such  riglits  of  jurisdiction  over  these  fur-seals  as  any  owner 
of  land  animals  would  have  over  domestic  or  domesticated  animals, 
when  found  on  the  public  highways. 

4.  That,  as  a  sovereign  power,  the  United  States  may  punish  its 
citizens  for  appropriating  or  destroying  its  property  on  the  high  seas; 
but  they  can  exercise  no  higher  powers  over  property  so  situated,  when 
it  is  being  appropriated  or  destroyed  by  the  citizens  of  other  countries, 
than  a  private  owner  could  exert  under  like  circumstances. 


mmes^ 


wm 


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t 


1^ 


I 


» 


« 


J 


IN  THE  DISCUSSION  OF  THK  OENEEAT.  SlTn.TEOT  OF  THE  AWARD  TO  BE 
RENDERED  BY  THE   TRIHUNAL,  AS  TO  WHICH   LORD   HANNEN   SUB 
MITTED   A  FORM   OF    AWARD,    SENATOR    MORGAN    SUBMITTED   THE 
FOLLOWING  REMARKS : 

1  supposed  that  the  debate  on  tlie  questions  arising  under  the 
treaty  hiwl  been  closed,  and  tliat  the  members  of  the  tribunal  would 
now  deliver  their  opinions,  Meruitim,  in  the  order  agreed  ujm)!!.  But  Lord 
Haunen  has  made  some  criticisms  on  the  attitude  of  the  United  States 
and  the  arguments  of  its  counsel,  that  seem  to  oi)en  up  the  discussion 
of  the  whole  subject,  and  I  must  not  allow  them  to  pass  without  notice. 

As  I  have  liad  occasion  several  times  to  remark,  during  the  progress 
of  the  discussion  before  the  tribunal,  this  i>s  not  a  litig.ation  between 
flie  United  States  and  (Ireat  Britain  in  which  a  judgment  can  b(^  ren- 
dered by  this  tribunal  in  favor  of  one  party  and  against  the  other  for 
a  right  asserted,  or  for  property  or  damages  which  one  party  must 
gain  and  the  other  must  lose.       ,   : :    ;  i.  . 

The  treaty,  which  is  a  law  to  the  tribunal,  provides  that  each  party, 
at  a  certain  time,  shall  deliver  its  juinted  case  to  the  arbitrators,  and 
to  the  agent  of  the  other  party,  in  which  itsiilaims  shall  be  fully  stated. 
Thus  two  independent  cases  are  required  to  be  stated  and  submitted 
for  decision.  This  M'as  done,  and  when  it  was  done,  the  attitude  of  the 
two  Governments,  as  to  the  claims  they  respectively  submitted,  was 
fixed  and  determined.  This  requirement  was  not  observed  by  Great 
Britain,  but  other  evidence  not  presented  and  submitted  either  in  its 
case  or  counter  case,  was  offered  during  the  ])rogress  of  the  oral  argu- 
ment and  wj»s  received  and  considered  by  the  tribunal. 

I  insist  thjit  these  proceedings  do  not  comprise  one  case,  but  sepa- 
rate cases.  They  are  to  be  heard  together,  bi.t  they  are  not  croJis 
actions,  neither  are  they  consolidated  actions,  as  is  sometimes  the 
7a 


78 


T 


case,  under  the  orders  of  a  court  having  plenary  powers.  Tliis  tribu- 
nal has  no  such  powers,  but  must  decide  each  case,  as  it  is  stated 
and  submitted,  upon  its  merits. 

The  simplest  analysis  of  the  <!ases,  to  which  all  other  questions  are 
merely  incidental,  is  this:  tiiat  Great  Britain  claims  for  its  subjects  the 
unlimited,  unrestricted,  and  nn*iualified  right  of  hunting  and  killing 
fur  swds  of  all  ages,  sexes,  and  conilitioiis-at  any  place  in  Hering  Hea 
and  in  the  North  Pacific  Ocean,  that  is  untside  the  ordinary  territorial 
limit  of  3  miles  from  the  islands  and  coasts  of  tlie  United  Stales.  That 
is  the  entire  claim  of  Great  liritain,  as  it  is  submitte«l  to  this  tribunal 
in  the  British  case. 

The  United  States  claim  the  ownership  of  the  fur-seals  that  are  in, 
or  that  habitually  resort  to  Bering  Sea,  and  the  right  to  ]>roteet 
them  wherever  they  are  found,  outside  the  territorial  limits  of  Great 
Britain.  The  tribunal  slumld,  in  my  ojiinion,  have  taken  u]>  these  cases 
separately  and  have  decided  them,  giving  <lue  consideration  to  tiic  ob- 
jections I'aised  in  the  (;ounter  case  of  either  party  to  the  case  of  the  other 
party.  The  decision  of  the  rights  claimed  in  either  case,  does  not,  nec- 
essarily, <lispose  of  the  rights  that  are  claimed  in  the  case  of  the  other 
party.  A  decision  ihat  the  United  States  has  the  ownership  of  the  seals 
or  the  herd  of  seals  d<»es  not  atlirm  its  i>ower  to  extend  its  statutes  into 
the  Pacific  Ocean  and  enforce  them  there  against  tiie  subjects  of  Great 
Britain  iu  any  and  every  ciise  of  trespass  ui)on  that  pr'oi)erty  that  may 
occur,  or  n»ay  have  occurred,  even  recently  and  upon  hot  pursuit  of  the 
offender. 

Neither  would  a  decision  to  the  contrary  entitle  the  subjects  of  Great 
Britain,  or  of  the  United  States,  to  hunt  fur  seals,  up  to  the  borders  of  the 
Pribil(>f  Islands,  in  such  force,  and  by  such  methods  as  would  seri- 
ously en<langer,  disturb,  or  threaten  the  industry  and  the  revenue 
system  that  the  United  States  has  established  there  for  the  purpose 
of  nniintaining  government  on  the  islands  and  of  encouraging  the 
Ufitives  there  in  earning  a  support  and  in  raising  themselves  to  better 
conditions. 

It  is  claimed  here,  as  it  was  claimed  in  the  arguments  of  counsel  for 
Great  Britain,  that  the  right  of  pelagic  sealing  exists,  as  to  fur  seals, 
under  the  international  law,  in  favor  of  the  8nl)jects  of  Great  liritain, 
and  also  in  favorof  the  citizens  of  the  United  States,  without  any  restric- 
tions whatever.  That  no  conditions  of  time,  or  nninner  of  hunting  the 
seals,  or  as  to  the  age,  sex,  or  other  condition  of  the  animals,  or  as  to  the ' 


1  i| 


"3».-a!6,iSxj 


iJSSSSsaSS'^MlXiffiSSir^aili!  J^MjWaWJ^j'feg''^ 


74 


I 


it 


i: 


numbers  engajjed  in  hunting  them,  or  that  their  purpose  in  to  destroy 
them,  or  that  their  implements  of  warfare  are  most  deadly,  can  operate 
to  eontrol  tlie  pehigic  sealer  outside  tlie  limits  of  territorial   waters. 

Tliis  view  of  thcMr  rights  is  not  disposed  of  Ity  deciding  that  the  United 
States  either  has  or  has  not  the  right  to  protect  the  fur  seals,  but  that 
<luestion  is  pertinent  in  considering  whetiier,  under  tliis  treaty  or  in 
the  international  law,  the  light  of  pelagic  hunting  of  fur  seals  exists 
and  whether  it  is  an  unlimited  and  unrestricted  right. 

Jjord  llanuen  lias  expressed  the  opinion  that  all  animals  found  swim- 
ming in  the  sea,  whether  tliey  are  birds,  fishes,  or  beasts,  if  they  are  not 
within  territorial  waters,  are  the  subjeets  of  rightful  pelagic  hunting. 
Under  such  a  law  an  animal  that  is  domestic,  such  as  a  hunting  or 
ducking  dog,  or  a  Hock  of  tame  geese,  or  ducks,  or  swans,  would  forfeit 
tlie  i»rote<!tion  of  the  law,  and  their  owner  would  lose  his  property  in 
them  in  favor  of  the  better  right  (»f  the  first  taker,  if  they,  in  search  of 
food  or  prey,  sh<mld  swim  out  on  the  water,  as  they  often  do,  beyond 
the  ordinary  .'3-mile  limit,  or  that  such  fowls  would  be  liable  to  the 
free  nport  of  the  hunter  if  they  should  Hy  through  the  air  in  their 
excursions  beyond  that  limit. 

In  the  efi'ort  of  Lord  Hannen  to  apply  to  the  fur  seals  a  rule  of  prop- 
erty and  the  right  of  protection  that  would  apply  to  wild  ducks  and 
geese,  and  to  swallows  whose  nests  are  taken  and  used  for  food  in 
China,  he  neglects  to  give  due  weight  to  the  cardinal  fact  on  which,  in 
one  aspect,  the  case  of  the  United  States  is  based.  It  is  the  fact  that 
the  fur  seals  that  are  in,  or  that  habitually  resort  to  Bering  Sea,  are 
SMI  generis,  and  that  no  'ther  fishes,  birds,  or  animals  that  visit  the 
ocean  for  food  or  pleasure  have  a  certain  fixed  abode  or  home  on 
land. 

His  lordship  omits  to  give  due  weight  to  the  fact  that  no  other  animal 
visits  its  place  of  abode  with  such  unvarying  certainty,  and  that,  when 
they  are  assembled  tliey  live  upon  very  limited  areas  of  land,  and  in 
compact  masses,  o\\\y  separated  from  each  other  by  the  distance  of  a 
few  feet  and  arranged  upon  adjacent  grounds  in  classes  entirely  dis- 
tinct from  each  other,  whereby  the  animals  that  are  fit  for  slaughter 
for  their  pelts  are  kept  entirely  separate  from  those  engaged  in  the 
duties  of  procreation  and  the  nurture  of  the  young.  So  peculiar  is  this 
trait  that  the  young  i)ups  collect  in  groups,  called  pods,  and  separate 
themselves  from  all  other  classes  of  seals,  and  keep  up  the  separation 
until  they  return  to  the  islands  the  next  summer  after  they  are  born. 


X 


1 


4* 


75 

Nature  has  not  fj;iven  to  any  otlior  class  of  animals,  wild  or  (lotuoHtic, 
tliis  (;lear  indication  of  their  SiM'viccablc  (piality  for  tlio  nsi^  of  man  and 
tlioir  iMiiivoidablc  destiny  to  hccoint^  siilijcct  to  liis  complete  donuni<m. 

Tln^  wild  }j(eose  and  docks  and  tlie  swallows  m«'ntioned  li\  Lord 
ilanncn  never  lose  the  instinct  of  escape  from  man,  which  the  seals 
have  not  except  when  they  are  in  the  water,  and  even  there  it  can 
H('arcely  be  called  an  instinct  or  hnbit,  until  it  has  been  created  in  them 
by  the  ill  usaye  of  pela{;fi«'  hunters. 

When  swallows,  <,'eese,  and  dncks  wish  to  escape  from  the  presence  of 
man  they  have,  at  .,11  times,  the  means  of  esciipe  on  tlie  win}-'  which  is 
their  eHectnal  method  t)f  avoi<linj;'  capture. 

The  seal  on  land  are  almosi  entirely  in»!apable  of  eseapinff  death  at 
the  hands  of  man.  The  breeding  places  of  the  wild  ducks  and  jjecse 
are  scattered  around  the  whole  earth,  above  certain  latitudes,  aiul  many 
species  breed  in  all  latitudes.  They  are  ren  nullius  because  ma  can 
not  lay  either  his  destructive  or  preserving  hand  on  them  at  jdeasure. 
W(mld  it  be  so  as  to  their  nests  or  eggs,  wiiich  nniy  be  taken  at  pleas- 
ure, or  their  young  that  can  not  escape,  and  are,  ratione  noli,  the  property 
of  the  owner  of  the  soil  ? 

There  is  nothing  in  the  evidence  relating  to  Chinese  swallows  or 
their  uests,  but  if  they  build  their  nests  on  the  rocks  along  the  sea- 
coast,  as  1  am  informed  they  do,  the  nests  belong  to  the  owner  of  the 
soil  as  much  as  the  honey  collected  by  bees  and  stored  in  a  tree  that 
stands  upon  his  land.  But  it  is  needless  to  seek  for  rules  that  will 
govern  the  rights  of  the  LIuited  States  in  respect  to  fur  seals  by  citing 
those  that  may  militate  against  those  rights  when  applied  to  fishes, 
birds,  or  beasts,  that  ditfer  from  them  in  their  essential  and  elementary 
instincts  and  do  not  invoke  the  duty  of  preserving  them  by  laws,  be- 
cause they  (tan  not  escape  fro;n  man  or  protect  themselves. 

I  do  not  intend  to  examine  tlie  question  of  property,  or  the  right  of 
protecting  it,  with  reference  to  the  bearing  and  authority  of  cases  de- 
cided in  England  or  the  United  States.  As  far  as  analogies  may  be 
useful  in  reaching  just  conclusions,  they  are  found  to  support  the  con- 
tention of  tiie  United  States  upon  the  authorities  that  have  been  so 
ably  discussed. 

Mr.  Justice  Harlan's  very  clear  and  cogent  opinions  on  this  view  of 
the  case,  in  which  he  quotes  with  approval  from  the  text-books  upon 
municipal  and  inti^rnational  law,  really  leave  nothing  for  me  to  say. 
I  fully  concur  in  what  he  has  said  on  these  topics.    But  I  feel  war- 


m 


'■■\  ii 


(vl   r' 


76 


ranted  and  reqiiinjd  to  add  at)ino  other  views,  arisiiif;  upon  the  whole 
treaty,  an  Ut  the  iiiattcrH  now  under  Hpec-ial  examination. 

ThJH  beiny  now  a  controversy  itctweeii  (JovcrnmentH,  the  ques- 
tionH  submitted  are  to  be  (U'ri(h'd  acc'irdin},^  to  the  duty  of  the  high 
contracting  parties  towiird  cacli  other,  i»ofh  having  tlic  purjxme  of 
protecting  and  preserving  the  liir  seals.  Tliis  duty  arises  out  ol"  the 
treaty  and  a  iMtmnuinity  ol'  purpose,  as  it  is  solemnly  avowed;  and 
it  is  not  admeasured  by  the  international  law,  as  wcmid  be  the 
ca^e  where  a  contr()versy  existed  that  involved  tlie  ownership  of  tlie 
seals,  for  instance,  if  they  were  claimed  Uy  belong  toeach(iovernment, 
and  the  tribunal  was  recpiired  to  decide  as  to  wliicii  of  tliem  has  the 
bett«!r  title. 

Tlie  tribunal  is  intrusted  with  the  power  aud  has  accepted  the  duty 
of  providing  for  such  con(!urrent  action  of  the  two  (lovernments  as 
will  prote»;t  and  preserve  the  fur  seals,  when  it  shall  det<u'miue  that 
the  United  States,  in  virtue  of  its  (»wn  sovereign  (towers,  ami  iieting 
alone,  can  not  preserve  thera. 

If  the  decision  of  any  (»f  the  questions  in  this  case  is  made  to  depend 
solely  upon  what  is  the  declared  international  law,  there  could  be  n«» 
need  tor  asking  other  nations  ta  accept  aud  ratify  the  award.  Their 
ae(!eptance  of  the  award,  as  the  correct  ruling  upon  (piestioiis  of  inter- 
national law,  would  simply  amount  to  an  atlirmance  of  the  legal  propo- 
sitions  involve«l  in  it.  All  nations  are  bound  by  the  international  law, 
and,  to  accept  a  decision  of  this  tribunal,  by  convention,  that  is  merely 
in  accordance  with  thsit  law,  would  only  be  to  agree  to  do  that,  by 
treaty,  which  they  are  already  bound  to  do  under  the  international  law. 

It  is  because  no  one  can  say  that  the  international  law  deterniines 
these  questions,  that  it  is  proposed  hereafter  to  est.iidish  by  treaty, 
in  which  all  the  States  are  requested  to,  concur,  what  is  their  duty  in 
giving  protection  to  the  fur  seals. 

All  pr(q>erty  originates  in  municipallaw  or  recognition,  and  no  prop- 
erty is  created,  or  defined,  by  international  law.  I  admit  the  influence 
propeily  to  be  exerted  by  the  judicial  d(^cisions  on  analogous  questions 
by  the  courts  of  England  and  the  United  States,  not  as  authority,  but 
as  argument,  or  jtrecedent. 

I  understand  that  the  right  aud  duty  of  protecting  fur  seals  against 
indiscrindnate  slaughter  is  much  mcu'C  distinct  and  obligatory,  than  is 
the  right  and  duty  of  protecting  animals  that  are  less  valuable  and 
are  not  placed  so  entirely  within  the  dominion  of  man. 


77 


I  iiiKlorHtiind  the  treaty  to  iiiiiko  it  the  duty  of  the  triliunul  to  con- 
sider tiio  entire  Hubjort,  in  tlie  li^ht  of  the  deHJre  of  the  two  natiouH  to 
protect  and  preserve  the  fur  seals,  and  to  have  it  detennincd  whether 
the  United  States  has  the  ri;;ht  and  power  to  deal,sin;;h'handcd,  with 
the  subject  of  proper  ref^uhitions  to  jtrotcct  and  jtrcservc  tlic  seal  lierd. 

In  tills  view,  the  attitude  «»f  the  two  {iovcrnnients  towards  the  in<|ui 
ricsHubniitted  to  tiie  tribunal  is  special  and  exceptional,  and  this  is 
eviilently  a  cantinal  feature  in  the  cases  submitted  to  the  tribunal. 
No  other  such  situation  ever  existc«l,  or  e\  cr  can  exist,  between  two 
nations  and  it  must  be  provided  for,  it  at  all,  by  a  special  award,  upon 
special  facts,  and  not  merely  by  seeking  analo^^ies  in  thedccision  of  qucs 
tions,  in  municipal  courts  and  between  private  litigants,  about  wild 
animals  as  to  which  a  private  right  of  property  is  in  question.  In  cither 
view  of  the  subject,  the  right  of  property  in  fur  seals  is  well  founded. 
The  rule  of  the  common  law,  and  the  Roman  law,  as  to  the  accpiiHition 
of  property  in  animals  that  are _/<;»•«■  natiinr,  when  a]»plicd  t^)  fur  seals, 
show  conclusively  that  these  animals  are  cai)able  of  specitic  ownership 
while  living. 

This  is  a  great  public  nuitter  that  has  engaged  the  attt^ition  of  two 
(iovcrnments,  and  all  their  gcographi(;al,  industrial,  maritime,  and  gov- 
ernmental relati(»ns  enter  into  the  proper  consideration  of  thei|uesti«(ns 
subnutted  to  the  tribunal.  The  peace  itetwccn  the  tuitions  is  also  a 
grave  considi'ration  for  the  tribunal,  as  well  as  the  eHectof  the  award 
upon  the  interests  of  itussia  and  .Japan.  The  power  to  ordain  regula- 
tions and  to  make  them  an  essential  part  of  the  treaty  is  so  interlaced 
with  (luestions  that  are  judicial,  as  to  give  to  the  powers  of  the  tribunal 
and  the  award  that  it  shall  make,  only  such  etfect  as  the  treaty  pro- 
vides— an  etfect  peculiar  to  this  case  and  not  su<;h  as  follows  the  judg- 
ment of  a  court. 

When  the  fur  seals  are  properly  protected  and  preserved  by  the  award 
of  this  tribunal,  the  purposes  of  its  creation  will  have  been  accom- 
plished and  the  full  limit  of  its  duties  will  have  been  reached.  Then  the 
appeal  of  these  two  great  i)owers  to  other  nations,  to  acce]»t  the  award, 
will  contain  no  assertion  that  the  award  is  a  correct  tinding  upon  the 
international  law,  to  which  all  nations  are  bound,  without  convention, 
but  an  afflrmatioii  tluit  it  is  a  just  and  salutary  arrangement,  reacthed 
by  treaty,  and  suited  to  the  purpose,  in  the  Tacilic  Ocean  ;  <]  in  all 
other  seas,  of  preserving  seal  life  and  of  restoring  it  to  its  condition 
before  it  was  so  nearly  destroyed  in  the  Antarctic  Ocean,  and  so 
seriously  threatened  with  extermination  in  the  North  Pacific  Ocean. 


m 


I     I  1. 


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m 


■.S  i' 


78 

1  lM'li«'W  Miat  in  ♦^vtMv  kN-j)  we  t-ik«,  rHui  in  «'V»'n,  (Je<-i.si«»ri  w«  nuike 
ill  tlli^*  niHtt**)",  w<*  hImkiIiI  !i\<i(<J  a!»stnu;f.  <jiuv'tit»i>f<  ainl  iii<(uirit>s  tlial 
c»n  liHV«>  no  }»r!i«*ti«'aJ  «'rt>.M't  HjM)n  tint  inowwl  porpoK*^  of  the  j»»rti«T<  (i> 
prod't't  aitd  pri'^crv*' tli<-  tiu  sruls.  TIh*  itttitii(i<!  i»t  tin-  («<•  <l<<v«iii- 
iMOiitN  towards  tli<-  :ifliiiirt>'(i  duty  of  prcst'rvjiiu  tli«'  fur  m'«1h  in  iln- 
future;  Mi»'  j|M»\v«M'f.  they  have  t'xrrt'iHwil  jointly  iiin!  severally,  ov<m'  th»' 
!>(!l»!f'i"i  in  (liC  [laKt  iunl  in  titis  trraty ;  tiitMonfijiUiation  of  fh(!  Ali'Ufian 
|H'ni«sul;s  and  lin-  islandvof  tliat  an-.hijM'Ia^o;  ilw  )u'«-nliaiili«'M  of  «tuil 
lif<',  »nd  tlio  d«'Htrnftiv»'  niHhofinof  noal  iiuntin);  in  the  open  Htm;  the 
proper  rentrirtion,  or  ncttcssary  proiiilntion  to  he  iin}»os(Ml  upon  pi'lajiic 
sealinj{:  the  ri^'iit  of  tlic  riiitcd  StateH  to  defend  and  proteet  it^.  jioworH 
of  ;;ov('!nnn'nt,  itn  revenues,  and  to)>re.serve  its  industry  on  U\c  islandK; 
are  iillhioniiiit  wiM'iin  the  seope  of  this  inojiiry,  by  tlu*  provisions  of 
tliis  treaty,  and  are  all  to  he  eoM.sidered  in  deterniininji'  what  are  the 
.just  and  eipNtaide  rights  and  t!ie  duties  of  the  hifjh  eontructiiig  powers. 

Not  merely  tiie  riglitw  that  would  result  in  a  Jinlj^ujent  for  one  party 
or  iiu'  oMnr  in  a  suit  hy  the  I'nited  Stfftes  in  a  nmnicipal  eonrt  for  the 
rfieovery  of  the  valiu-  of  a  seal  killed,  by  a  jielajiie  hunter  on  the  high 
seas,  hut  that  tliejust  an«i  lionorahle  international  oblifjation  vesting  by 
agrei'Mu  nt  iiposi  both  (ioveiiinieats.  will  liiid  aiitin-ntii- an<i  final  exi)res- 
;sion  in  the  award  (d'  this  tribunal. 

On  ill!  luunls  it  is  admitted  tlnit  tlie  award,  when  rendered,  will 
eouHtitute  a  stipnlatir»a  of  the  treaty  in  the  si;:.ie,  sense  as  if  it  had 
been  written  in  the  text  of  the  agiocnient  by  the  high  contraeting  powers. 
This  being  ho,  and  the  power  of  this  tribunal  to  detern)ine  and  estab- 
lish eon<'Uvnnt  regulations  heiiifi  a  poinr  In  ordidii.  dini  nut  a  juridical 
poirif  to  (h'chli'^  and  boUi  being  united  in  the  tribunal  and  Mibjet't 
hugely  to  its  diseretion,  the  facts  that  bear  u[>on  thejndieial  in(iuiries 
and  upon  the  powers  of  ordination  an-  the  same,  are  inade  identieal  by 
the  treaty,  and  are  to  be  eonsidered  as  one  entire?  body  of  evidein'o,  in 
respect  of  botlt  elasses  of  powers. 

No  abstract  (luestirai  (d"  law  is  submitted  to  this  tribunal.  The 
law  thai  is  inteiidt-d  to  govtsns  this  (-use  in  all  its  parts  and  phases 
is  the  law  of  Jusliei ,  comity,  trade,  conuneree,  humanity,  good  will,  and 
peace,  in  carrying  out  a  (!onuii(»n  purpose  of  protecting  and  i)re8erving 
the  fur  seal  species  in  the  interests  of  eonimeree  upon  the  facts  pre- 
sented to  the  tiibuual  and  su<!h  as  are  within  tlie  reaeli  of  its  judi<ial 
knowledge.  It  is  upon  this  view  of  Hie  duties  of  the  triljunal  ind  of  its 
])owei'8  and  of  the  rights  of  the  parties  aiul  the  coniplexio!i  they  have 


4 


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TO 

jrivcn  totlM*8eiii»|uiri«>HrtiHl  que»«tioiiH  by  the  treatj  that  I  will  exuinih<> 
the  subjwt,  • 

The  very  j,'t»iit'ral  iiianiier  in  wliich  (he  qiicstiuns  siihiiiithMJ  li>  ui'l»i- 
tratioit  ;irt>  Rtatcd  in  tlu*  ti<-al,v.  and  the  iiuii'Diiitt^  statniieiit  of  the 
(■iaims  ui'  the  respective  j^jdverniiients,  tlie  iihsenee  oC  direot  issues  of 
ta<rt  or  law  in  the  siilnnission.  aitd  th<'  iinhi'  i  cd  laiifie  of  iii(|iiirv  as 
U)  all  faets,  whether  hislorjeal  or  judieial  ih  ehaiaeter,  the  j-enenil 
form  in  whieh  all  qitestioiiH  are  8tateil  in  the  treaty,  seem  to  ileinand 
a  broad  and  Just  mvard  by  the  tribunal  thiit  will  cover  a  threat  eon 
troversy  tliut  is  entirely  new.  In  the  treaty  of  IHiCJ,  ditVerin^^  tVoni  ail 
former  treaties  on  like  nuitters,  the  facts  which  constitute  the  foundation 
of  the  claims  (tf  the  res)>eetive  ])arties  are  not  statetl  hypothetieally,  or 
in  any  foiin,  nor  are  the  questions  that  arise  on  those  facts  staled  in 
any  issnable  form,  nor  an^  the  rules  of  law  or  justice  stated  under 
which  the  tribunal  shall  ascertain  ainl  :vhni»aH".rc  the  rijjhts  of  the 
parties. 

fu  this  treaty  everything  is  \(!ft  to  the  as«rertainnienl  anil  the  deter 
mination  of  the  tribunal  within  very  broad  limits  of  in(|niry  u|»on  cer- 
tain topics.  The  only  separate  and  specilic  duty  imposed  on  the  tri 
bunal  is  that  they  will  ascertain  and  declare  the  facts,  and  ajiply  tiie 
hiw  that,  in  their  opiintm,  gives  a  true  answer  to  certain  sweeping 
inquiries  stated  in  Article  VI  of  the  treaty.  This  is  an  exeeedingly 
broad  and  comprehensive  grant  of  |)ower  and  dis<'retion  to  this  tribunal 
«>f  arbitration,  in  reference  to  a  subject  in  which  all  civilized  eouiitries 
are  intercsfeil,  and  is.  to  numy  uncivilized  i)eoj)le,  a  source  of  supply 
of  food  and  laiment. 

'i'liese  great  nations  fotind  occasion  to  project,  if  not  to  fornuilate  and 
to  estal)lish  by  .mpartial  arbitration,  new  rules  of  right  and  convenience, 
and  also  of  jurisdiction,  that  are  not  distinetly  stated  in  the  international 
law,  for  the  pnttection  and  pjcservation  of  the  fur  seal,  to  be  enforced 
outside  the  jurisdictional  liiiutsid'thetwogovernnu'nts  and  of  all  othei' 
governments.  In  «h»ing  this  they  agreed  to  bind  themselves  to  accept 
and  abide  t)y  the  rules  that  this  tril)unal  shall  adopt,  and  to  cooperate 
in  securing  the  adhesion  of  other  powers  to  them.  A  <'ourse  somewhat 
similar  was  followed  by  them  in  the  Treaty  of  Washington,  of  1.S7I. 

Yv^heii  the  nature  of  this  splen<lid  fur  is  ccmsich-red,  and  the  ta(;t that 
it  is  the  only  source  of  supply  of  large  pelts  that  is  available  tor  the 
uscH  of  mankind;  and  that  the  fur  seal  is  the  only  fur  bearing  aninnil 
that  can  be  preserved  by  law,  on  the  priucijtle  of  domestication ;  and  that 


*;,  !  /  '■ 


80 


i5» 


itM  value,  and  the  enny  prey  it  offers  to  a  cuiiibinatidn  of  vesseiN  and 
w«>a|>oiiH  for  its  <'a|itiir<-  iiave  destroyed  the  Rpeeies,  in  a  eoinmercial 
Hciise,  ill  the  southern  heiiiis|ihere,  aiul  iir<-  i':i|ii<lly  destroying;  it  in  the 
waters  oC  the  north  I'aeiti<t,  it  would  only  lie  surprising  if  tireat  Jtritaiii 
iiiiti  the  I'nited  (States,  whosv  |M'ople  are  alone  enjjajfed  in  this  work 
of  (h'stnietion,  shonid  not  have  a;rreeil  to  provider  some  etVectual  inean.s 
for  tilt;  pt'oteetion  and  ])res('rvatioii  ol  this  vahial)le  aniiiKil. 

In  the  rontident  expectation  that  all  the  countries  where  fur  seals  are 
liied  will  adopt  the  methods  of  i)roteetion  and  preservation  that  this 
trii>iiiial  shall  provide,  t«»  operate  outside  the  acknowledged  limits  of 
exclusive,  sov«-rei};n,  national  jurisdiction,  if  tliey  are  found  to  be  wise, 
Just,  and  practical;  and  that  I'e  Cioveriinients  concerned  will  take 
)»roper  eaic  of  these  valuable  animals,  on  their  islands  and  coasts; 
these  two  Governments  have  instituted  a  jdaii  for  securinj4  these  ends, 
which  is  well  ada]ited  to  that  purposf?.  Thai  result  will  be  secured  if 
the  tribunal  will  exert,  firmly  and  wisely,  the  hifjli  i»owers  eontided  to 
them.  ^ 

The  confidence  felt  by  these  Governments  in  the  henelieial  results  of 
arbitration,  is  fnlly  jnstilied  liy  their  past  experience,  and  has  led,  doubt- 
less, to  the  increasti  of  powers  and  discretion  given,  in  the  treaty  of  185):i, 
to  this  tribunal  of  arbitration. 

The  whole  civilized  world  is  interested  in  the  result,  and  many  Justly 
expect  that  the  award,  when  made,  will  (!over  the  great  question  of  the 
proper  jHoteetion  and  i)reservation  of  the  fur  seal  specie's  in  such 
manner  that  the  rejiulations  may  win  the  api)roval  and  seeiiro  the 
adlu'si(m  of  all  the  maritime  jiowers. 

It  would  be  a  serious  dereliction  of  duty  on  the  part  of  the  tribunal 
if  they  should  fail  to  <bMil  with  this  great  (piestion  in  the  broadest  way, 
included  in  the  purview  of  their  powers,  and  should  confine  their  decla- 
rations and  award  to  narrow  or  technical  grounds,  or  to  a  simple  decla- 
ration of  rights  of  piopcrly  in  fur  seals,  or  to  the  jxiwers,  or  Jurisdiction 
to  i)ieserve  oi  protect  tliem  in  Ueiing  iSca,  and  should  provide  no  reg- 
idations  under  which  these  rights,  powers,  and  Jurisdiction  should  be 
enlbrced,  or  exerted,  wherever  the  seals  are  found. 

The  necessity  for  protecting  this  pro[)erty,  Lis  2)cihIciih,  was  not  fully 
understood,  and  could  not  be,  until  tin;  close  of  the  sealing  period  for 
18!tL»,  after  the  treaty  had  been  (!onc1uded.  In  181)1  the  destructiim  of 
seal  lil\',  resulting  fnuii  the  catch  of  .'Mt.tKK)  seals  in  Bering  Sea,  by 
pelagic  hunting,  was  estimated  as  being  at  least  eipial  to  the  number 


killed  on  the  seal  islands.     And  tliis  was  the  result  despite  the  fuct 
tlmt  Uie  tiiOfliiH  rireiuli  fof  that  year  wjis  si};ued  on  Juno  15. 

The  nuxhiK  iinu<U  for  tSOU  was  Mi^^iied  on  the  IHth  of  April,  before 
the  pelagic  hnntinjjf  had  oeeurred  for  that  year.  In  Itoth  tlu'se  agree- 
ments of  ISiU.  and  of  liSi>2,  which  were  intended,  in  the  first  one,  to 
earry  (uit  the  proposed  treaty,  and  the  treaty  as  a^^reed  upon  ami 
siglied,  in  the  .seeond  one.  a  prohilntion  of  pelaj^ic  sealing  was  agreed 
upon  and  enforeed  against  the  peoph'  of  eaeh  (iovernnient.  These 
were  "concurri'ut  regulations,"  ai\d  the  neeessit.N  for  them  was  thus 
admitted  by  hoth  (lovernments.  They  wore  not  extended  to  the  North 
racifle,  because  the  destructive  etVeets  of  pelagic  hunting  there  were 
not  then  known  to  the  United  States. 

Now,  it  is  ascertained  that  the  seal  hunting  in  the  open  ocean  and 
at  the  entrances  to  Bering  Sea  is  even  n\t>re  destructive  beyond  tlie 
jurisdictional  limits  of  both  countries  than  it  ever  was  in  Hering  Sea. 
These  facts  have  been  developed  since  the  cases  of  the  parties  were 
delivered  to  the  arbitrators. 

I  am  led  to  restate  these  facts  in  i)art  and  to  repeat  arguments  I  have 
had  the  honor  to  submit  ui)on  previous  phases  of  this  discussion,  because 
of  uiy  earnest  desire  that  the  award  of  the  tribunal  should  measure 
up  to  the  opportunities  and  demands  of  a  great  occasion  and  should 
recommend  itself  to  general  acceptance  by  the  civilized  nations. 

The  (piestion  stated  in  ''point"  live,  of  Article  VI,  of  the  treaty,  re- 
lates to  the  ligin  of  property  and  the  right  of  piotciitioii  of  that  prop 
ertj',  which  tlii^  tribunal  may  fully  decide  without  touching  the  ipies- 
tion  of  the  exclusive  jurisdiction  of  Russia  and  the  United  States  to 
provide  for  the  protection  of  that  proj)erty,  if  the  right  to  it  is  found  to 
exist.  Those  questions — "points" — as  to  the  exclusive  jurisdiction  of 
the  United  States  arose  out  of  claims  that  Russia  is  alleged  to  have 
asserted  and  exercised  "]»rior  and  up  to  the  cession  of  Ahiska  to  the 
United  States,"  without  reference  to  the  question  whether  those  claims 
were  well-found«'d  in  custom,  in  natural  or  nnnal  law,  or  in  the  law  of 
nations. 

The  claim,  or  iiuestion,  stated  in  point  5  of  Article  VI  has  a  wholly 
different  foundation.  It  is  a  claim  of  "projterty  in  the  fur  seals  fre- 
quenting the  islands  of  the  United  States  in  liering  Sea,"  and  the  cor. 
rehitive  right  of  protecting  them  when  such  seals  are  found  "outside 
of  the  ordinary  three-mile  limit,"  to  the  same  extent  that  such  right 
11405  M 6 


82 


tiXiHts  iiiiil  may   hv  proterted   wlicii  tin-  seals  ar«^  (uuikI  iii«itl«   the 
iw;kiio\vle(lp'«l  ti'iritoriul  limits  of  the  islaii(I». 

Tliis  claim  of  property  in  the  United  States,  if  it  exists  and  so  far 
as  it  is  not  affected  l»y  pres«'riptioii,  is  based  upon  the  habits  of  the 
animals  wiiicli  make  them  domesticated  property  and  subjects  them 
al»s<)lntely  to  the  possession,  dominion,  iintl  use  of  the  United  States 
by  an  irrevocable  law  of  nature,  whicli  supjdies  a  Just  foundation  for 
its  jiiotective  ley;islation. 

Tlni  ritjht  of  "exclusive  jurisdiction  of  the  Tnited  States"  to  protect 
the  seals  "found  outside  the  onlinary  three-mile  limit"  is  a  ri^ht  that 
is  based  on  moral,  or  municipal,  or  internati(Mial  law,  or  upon  all  those 
laws  combined  in  sup)»ort  of  justice,  the  protection  of  commerce,  an<l 
in  aid  of  liumaMity  and  tlie  peace  and  ;;(iod  will  of  nations. 

The  right  of  the  I'nited  States  to  this  property  is  neither  greater  nor 
less,  when'- it  is  based  on  the  nature  and  Inibits  of  the  seals,  beeause 
Russia  may  have  asserted  or  exercised  "  exclusive  rights  »m  the  seal 
fisheries''''  in  IJering  Sea;  nor  is  the  right  to  i>rotect  the  property 
necessarily  dependent  upon  the  answer  to  the  question,  "  What  erclit- 
sire  jurisdiction  in  I'.eiingSea  did  Hussia  assert  anil  exercise?"  While 
this  right  and  this  juiisdiction  are  correlated,  they  arc  not  identical, 
nor  do  they  depend  necessaiily  upon  ea«*h  other  in  the  form  in  which 
they  are  stated  in  the  five  points  of  Article  VI. 

If  the  arbitrators  find  that  the  United  States  have  no"e\ehisive 
jurisdM'tion''  to  protect  "  the  fur  seals  in,  or  habitually  res  »rting  to  the 
Hering  Sea,"  such  a  decision  must  mean  that.  a»  between  the  United 
States  and  (Ireul  Ibitain.  wliose  subjects  cl.iim  the  right  to  take  the 
seals  wherever  tbuud  "outside  the  jurisdictional  limit^  of  the  res|H«etive 
troveruments,"  the  consent  of  (ireat  Britain  is  nej-essary  in  that  ar«H 
of  the  sea,  to  su])i>1y  such  lavk  of  jurisdictH)n  by  -eoneurreHt  reguitk. 
tions"  to  suppress,  or-  control,  pelagic  hunting.  And,  if  the  Arbitra- 
tors hold  that  they  have  no  power,  in  that  event,  to  protect  the  seals 
by  ordaining  concurrent  regulations  for  rhat  purpose,  and  if  the  Uiot»Hi 
States  havi>  no  lawiul  power  to  protect  fliem.aud,  it  (Ireal  Mritaiw  will 
not  consent  to  a  joint  protection  of  them,  they  will  perish  utterN- 

If  the  arbitrators  hold  that  the  United  State's  have  tlic  ••«  ijnsive 
jurisdiction"  to  protect  and  preserve  tli.-  fur  s<'als  "outside  their  juris- 
divtioiiul  limits,'^  (\\\\'u-h  is  a  solecism),  becatise  they  are  the  •  \clusive 
owners  of  the  seals;  or,  if  they  hold  that  (udagic  hunting  outside  the 
ordinary  territcu'ial  liuuts  of  three  miles  around  the  seal  islands  does 


mmm 


83 


not  so  afl'tM't  seal  life  as  to  make  it  neoossary  to  ustabliHh  n-jjnliitions  tor 
the  supinH'ssion  or  ntiitrol  (»f  ihat  pnictico,  they  will  have  in>  iwi'd  in 
make  any  award  rurthortlian  totli.smiss  all  that  part  of  theNll^)nli^«.sion 
and  leave  tiie  <in_./Jons  sulHiiittt'd  to  them  undecided. 

Tiiis  \v(iu!<l  not  be  a  •Mi'siilt  of  their  pitueedinjis"  that  \M>nld  l»e  llnal, 
"as  a  lull  and  perft'ct  .si'tllciuoiit  of  .ill  tlit'  i|iie.stii)n.s  refcncil  to  tlu' 
arbitrators,'*  but  would  leave  tht^  (loveruments  contVoutt'd  to  eaeh 
other,  with  no  barrier  between  tlitiii  to  i»r<'vt  iit  hostilities  in  future. 

If  the  arbitrators  should  hold  tliat  the  Initcd  States  "has  exelusive 
jurisdiction"  to  pioteet  the  fni-  seals  c»ii  the  open  oeeaii,  beeause  th«' 
seals  are  their  e\<»lusive  proi»erty.  and  if  they  should  stoj)  at  tiiat  ileela- 
ration,  many  (luesiions  as  in  tlie  manner  of  exerting  that  riyhl  or 
power,  whiefi  lie  beyond  thai  d«'terniinatioii,  would  arise;  such  as  the 
right  of  visitation,  search,  and  seizure;  and  also  (juestions  as  to  the 
etteet  of  statutes  of  the  Tnited  States  beyond  liie  limits  of  flieir  tei 
ritorial  Jurisdiction,  and  also  the  ipiestion  of  the  condemnation  of  ships 
belong infn' to  Great  Britain,  in  the  c<mrts  ol  the  I  iiited  Htatcs 

Proper  concurrent  rejiulations,  establislied  hy  this  tiibunal,  would 
result  in  establisliiiif;'  the  peace ot  nations, and  th<  prote«-tion  and  jnes 
ei'vation  of  a  valuable  s]»ecies  of  aiiiinals,  the  destruction  of  which 
would  seriously  injure  commerce,  would  dejuive  iiianv  tltousaixls  of 
people  of  remunerative  employment,  and  would  lca\<-  a  bh»t  on  the 
civilization  of  the  aye. 

To  hold  that  there  is  no  necessity  for  the  re^ulilti(»n  of  |>elaieiiti«ealiBg 
by  s(mie  power  or  sttme  autluuity  is  to  ij^nore  the  evidt'iir*  in  rhe  case 
and  the  .joint  rejiort  of  the  con\niissioners  ai)point«>d  iui»iA[»r  this  tn-atv. 
and  the  statement  and  opinions  of  the  dipUunatic  nefiri'seiitativet*  of 
both  countries  and  of  llussia  and  Japan. 

Canada  alone  has  formerly  contended  tiiat  no  lUHieasity  e.KistB  tor 
reiyulatuty  pelagit-  ^caliiiji;,  b\it  that  the  (ioveii:nieiit  has  so  far  modiiiml 
its  views  as  to  aj^ree  to  the  draft  convention  submilled  to  Mr.  IJUu.'weWy 
Lord  Salisbury,  which  proposed  a  ch>sc  time  (or  pc'hijuic  sealinj;  m  tshe 
North  I'jK-i lie  Ocean  and  in  Jieriu}!:  Sea.  1  f  1  Xanadu  has  not  giMM- far 
enough  in  tlie  right  dire«'tion  she  has,  at  least,  admitted  the  nee«SHity 
of  ^>iue  iMHgress,  and  has  shown  her  williitsness  to  contiirm  her  a<;tion 
t\»  ihe  vi^ws  uniformly  exp;  esswl  bytlM^dov'  "  'of  Her  Majesty, 
^at  th*"  seals  in  ISeruig  S«'a  an<l  the  North  I'.i-  ■<<■  --Kould  be  jucserved. 
ttfi  'hat  unrevtriered  ami  indi;*  rilHil»»t■I"*ealing^llou!d  not  l>»  allowed. 
There  is  iu>  Uit^iHtte  tltat  thi.s  ha.s  b««ii  the  a\ owed  (j4U'p«Me  of  bcit^ 


84 


Oovornnu'nts  in  their  long  mid  «'xlianstive  (li|)lomatic  corrospoiidonce 
iMul  iicpttiaf ions,  and  in  agnMiiij,'  to  aihitiation  niton  tiif  whole  "  sub- 
j<M't"of'  |»rot»'»tiii^  and  preserving  the  fn  r  seal  in  l»ering  Sea,  and  re- 
Kortingtoorfrefineiitingiliat  s«'a.  Hn*.  1  think  tliis matter  isol'snHicient 
importance  in  its  hearing  upon  the  dnties  <)f  this  tribunal  to  Justify  me 
in  a  coneise  statement  of  my  views  as  t<»  how  the  (luestions  of  difterenee 
•trose  between  the  United  States  aild  (Jreat  Britain,  and  how  their 
treaL.:ient  gave  rise  tu  tln^  (piesticns  rormnlate<l  in  tlu!  treaty. 

The  Inited  States  sei/ed  some  of  tin-  s(!aling  vessels  cn'jtloyed  in 
Bering  Sea  and  they  were  eondenuuMl  in  their  eourts  in  Alaska,  and 
ther^Mipon  the  Government  of  (Jreat  Britain  assumwl  the  protection  of 
vessels  so  employed  nnder  her  flag,  and  made  protest  to  the  (tovern- 
n>ent  of  the  (Inited  States  against  their  seizure  and  contiscatiou  and 
against  the  arrest  and  i>unislinient  of  her  snbjeets  sailing  under  the 
IJritish  Hag,  and  made  a  elaim  for  <lamages  in  their  behalf. 

The  lirst  seiznn;  was  an  American  vessel,  August  1,  1880.  Thus  it 
was  this  di|)lomatie  controversy  had  its  origin  in  the  insistence  of 
Canada  upon  tlie  claim  <>{'  an  unrestricted  right  of  pelagic' sealing 
without  regard  to  the  preservation  of  seal  life,  or  the  rights  of  the 
United  States,  or  their  interests;  and  it  was,  at  first,  confined  to 
pelagic  linnting  of  fur  seal  in  Bering  Sea.  U  was  the  abuse  that  grew 
up  nnder  the  asserted  riglit  of  jtelagic  sealing,  as  it  was  practiced  by 
the  CaiuidiaiiM,  and  n(»f  the  arrest  of  the  vessels  that  gave  origin  to 
this  controversy.  The  initial  point  of  the  lU'gotiations  that  resulted  in 
the  treaty  of  I-'ebruary  29,  1A\)2,  was  establislied  in  ISS7.  It  was  ex- 
panded into  this  treaty  and  has  drawn  after  it,  as  an  incident,  the 
contention  relating  to  jurisdiction  over  Bering  Sea. 

The  contentions  of  the  two  (lo\ernments  were  conlined  to  (piestions 
that  artected  their  respective  claims  of  rights,  within  Beiing  Sea,  when 
Mr.  rheli»s,  minister  to  (Ireat  Britain,  on  November  11,  1887,  brought 
the  subject  to  the  attention  of  Lord  Salisbury,  and  then  i)iopt)sed,  on 
the  part  of  the  (ioveinment  of  the  United  States,  "that  by  mutual 
agreement  of  th«^  two  Governments,  a  code  of  regulations  should  be 
adopted,"  etc.,  for  the  preservation  of  the  seals  in  Bering  Sea,  "  entirely 
irrespective  of  any  (juestion  of  conHicting  jurisdiction  in  these  \vat<  -s." 

Mr.  Phelps  wrote  to  Mr.  Bayard,  as  follows  : 

His  Lordshii»  promptly  ac<|uiesced  in  this  proposal,  on   the  part  of 
Great  Britain,  an<l  suggested  that  1  shouhl  obtain   from  my  Govern 
ment  and  submit  to  him  a  sketch  of  a  system  of  rcjjulations  which 
would  be  adequate  for  the  puri)ose. 


.. 


n 


4»     ^ 


+ 


85 

On  April  10,  ISHS,  Lord  Siilisbiiry,  with  a  view  to  ineotiiip  tluMvislieg 
of  the  Kiissian  (ioveniini-nt  ivs|K'ftint,'  tln^  waters  HiiinniiuliiiK  Hobben 
Ishiiid,  yugj^ested  t*i  Mr.  Wliiti'  '"that  besides  the  wlude  of  Bering 
Sea  thOHO  portions  of  the  Sea  of  Okhotsk  and  of  the  I'aeitie  Deean 
north  of  latitude  47  degrct^s  sliotihl  beineluded  in  the  proposed  a rraiige- 
merit."  (See  Ap|)endi\,  V(»l.  I.  to  Case  of  tiu'  United  States,  p.  179.) 
This  fixed  the  area  of  tlie  "l•lt^s^  time"  -(M)  nules  sontli  of  the  northern 
border  of  Washinjiton  State,  lie  also  suggested  that  the  close  tiuio 
extend  from  April  !."•  to  October  I. 

Mr.  Hayard,  tlintngli  the  plenipotentiaries  of  the  LFnited  States,  i)re- 
aonted  the  proposal  made  to  (Iri^at  Hritaiu  and  the  assent  of  Lord 
Salisbury  to  the  same,  to  the(Jovernments  of  Japan,  linssia,  (ierinany, 
and  Sweden  Xorway,  and  asked  their  concunence  in  an  international 
eonvention  to  settle  the  (|iiestioM  of  pelagie  fur  seal  inuiting.  on  the 
general  basis  of  the  informal  agreement  reached  l»y  the  two  (Joverii- 
ments.  Hoth  Japan  and  Russia  cordially  assented  to  such  a  negotia- 
tion, and  Sweden  and  Norway  said: 

The  Royal  (iovenimcnt  having  no  interest  in  the  seal  f\sheries.  His 
Majesty  thinks  there  is  no  need  to  take  part  in  any  treisty  in  reference 
thereto  on  the  jtart  of  the  United  Kingdoms.  Me,  however,  exprt-sses 
the  desire  that  a  mutually  beiielicial  accord  may  be  arrived  at  betw«»en 
the  interested  jiowcrs,  and  that  tiie  same  nuiy  be  maintained,  wirh  a 
reservation  tliat  tlui  powers  not  at  present  int^nested  may  Join  in  naeii 
an  arrangement  in  future,  if  th«'-y  desire. 

Japan  replied  to  the  note  of  the  United  States  October  8,  1887,  and 

said:  • 

The  unregulated  and  indiscriminate  s'augliter  of  the  sea  otter  as 
well  as  the  fur  seal  on  the  coasts  of  .lapan  and  in  their  coterminous 
watei's  is  a  subject  which  has  for  many  years  engaged  the  attention  of 
th(^  Imi)erial  (lovernment.  Tiie  experience  of  Mis  Majesty's  Govern 
ment  justities  the  belief  tliat  the  end  sought  to  be  obtained  can  be 
best  secuiod  by  means  of  a  coiipcrutirc  intcniutioiuU  action,  anil  they 
therefore  cordially  approve  of  the  suggestions  of  the  honorable  the 
Secretary  of  State. 

The  Russian  Goveriiment  on  November  25,  1887,  said: 

Mr.  Wurts,  under  date  of  August  22  (September  2),  was  good 
enough  to  communicate  to  me  the  views  of  the  Government  of  the 
United  States  of  America  upon  the  sul)j«!ct  of  the  desirableness  of  an 
understanding,  among  the  (iovernnients  concerned,  for  the  reguhitiou 
of  the  taking  (la  chasse)  of  the  fur  seal  (loutres)  in  the  Bering  Sea,  in 
order  that  an  end  might  be  i)ut  to  those  inconsiderate  practices  of 
extermination  which  tlireaten  to  dry  u]),  at  tiieir  stmrcc,  an  importsmt 
branch  of  internati(»nal  commerce. 

We  concur  entirely  in  tiio  views  of  the  Government  of  the  United 
States.  Like  it,  we  also  have  been  for  a  long  time  considering  what 
means  could  'be  taken  to  remedy  a  state  of  things  which  is  prejudicial 


m 


1/ 


x/ 


not  only  to  coiniiicro^  mid  to  rovcnno,  but  which  will  soon  work  disas- 
trolls  it'.Hults,  «(>N**i/i/  fo  tliv  irell  Ixiiiif  hut  <rni  to  the  cxixtinrf  of  our 
lHO])h'  in  till-  rrtrtiue  \ortfuvfxt.  Tlui  i'staliiislnnciit  of  a  loasouable 
rule,  and  of  a  lawtnl  systctn  in  tin?  use  (r»'xi»loitati(ni)  of  the  n'sourccH 
which  funiixli  tliiir  ttiih/  imlKstri/,  is  for  lliosc  jicoplt!  of  vital  iiiipor- 
taiMi'. 

'I'lic  prcssiiiji  int<'n'st  wiiicii  tlic  Inipcriai  (iovcMiinicni  has  l»c«'n  thns 
cjillcd  to  conHidcf  lia<l  already  sn^fj^csted  to  it  tin*-  idea  of  an  interna- 
tioiinl  atiri'onriit,  l»y  wlijcii  tiiis  intcicstjiiifriit  find  its  most  cMident pro- 
tection. It  is  by  this  way  that  tlic  dillcrciit  ipicstions  involved  can  be 
l)est  resolved,  and  aninii;^  wliich  there  exists,  in  our  opinion,  a  clo8« 
coiun-etioM. 

The  proposition  of  an  accord  eiiianatinji  troin  the  (ioveriinient  of  the 
I'nited  States,  and  wliich  we  take  pleasure  in  considering;  as  a  step 
toward  that  jjeiieial  solution,  ninst.  of  coiir.se.  hut  meet  the  sincere 
syin|ialliies  ot  the  Imperial  (ioveriinient  and  its  active  sni>port;  and 
tins  1  pray  yon  to  make  known  to  the  cabinet  at  \Va,sliington.  JMease 
receive,  etc.  ■ 

Thus  the  four  powers  that  include  between  tlieiv  res])eetive  territorial 
]»ossessions  all  the  waters  of  the  North  I'acilic  Ocean  and  of  the  seas 
in  which  the  Alaskan  fur  seal  is  found,  were  in  complete  accord  and 
afireement  that  }uia<iiv xcaliuji should  be  riiiulatcd  by  their  mutual  covaent. 
And  L<»r<l  Salisbury,  as  late  as  February,  ISSS,  informed  Mr.  Phelps 
that  he  assented  to  Mr.  Bayard's  ])roposition  for  a  close  time  for  fur 
seals  between  April  15  and  November  1  in  the  lieriiifj  Sea,  and  stated 
that  he  would  "join  the  Tnited  States  in  any  preventive  nieasnr<'  it  may 
be  thoiijiht  iiest  to  adojit,  by  orders  issued  to  the  naval  vessels  in  that 
ref;ion  (»f  the  respective  (Jovernments,"  (See  Appendix  to  American 
Case,  vol.  1,  p.  17r».) 

The  negotiations  progressed  thus  fav«»rably  until  (Janada  interposed 
to  prevent  the  settlement  of  the  cpiestion  as  to  which  four  great  powers 
had  practically  agreed,iand  asserted  that  no  dose  time  was  necessary. 

Canada,  without  diplonnilic  power  or  responsibility,  still  had  power, 
through  her  political  relations  with  (ireat  Britain,  to  contr<d  and  em- 
bairass  thediplomacy  of  the  Imperial  (lovernment,  even  in  antagonism 
with  the  interests  of  the  British  people,  as  stated  by  Lord  Salisbury. 

Without  (piestioning  the  rightor  duty  of  Great  Britain  to  consult  the 
interests  or  wishes  of  her  colony  in  the  matter,  it  is  a  serious  and  dan- 
gerous embarrassment  to  the  Cin'ted  States  that  they  must  deal  only 
I  with  (heat  Britain  in  settling  ditliculties  that  relate  to  the  coiuluct  of 
the  Coveinmentof  ('anada.  She  issues  tishery  clearaiujes to  vessels 
belonging  to  her  people,  and  under  them  the  citizens  of  the  United  States 
are  sheltered  in  their  violations  of  United  States  statutes;  and,  when 


ir 


87 


they  arc  arrt'stort  for  tlie  nronjr.  Great  Britain  is  called  npon  to  inter- 
pose, at  tlic  nioniriit  wlicn  she  is  n»';;<ttiatinj;  with  tlie  I  uitetl  States  for 
its  HU|>|M(>Hsion.    Tiiis  is  a  very  einbarrassiuf,'  Hituatioii. 

On  the  I3th  <<f  AanUHt,  1. HSS,  Mr.  IMielps  tield  a  eonversation  with 
Loril  Salisl)Ui'v,  and  ur^^ed  tiie  enin|>letion  of  a  eonventiun  between  the 
Tnited  States.  (Ireat  Britain,  and  Itiissia,  wliieli  lia<I  previously  been 
the  subject  of  disci  ssi.in  Ix'tween  these  (ioveriinic(»ts.  (See  App«>ndi\, 
vol.  1,  t«»  Case  (tf  (lie  Initcd  Mtiitcs,  p.  isii.)     Mr.  I'iielps  says: 

Tiiis  convention  iiad  been  viilniiliy  afi:rec<l  on,  e\ce]>t  in  its  detailH; 
and  tiie  Ifussiiin  as  well  ;is  the  Inited  States  (iovernnieni  were  desir- 
ous to  have  it  ••cniphMcd.  'I  he  considcriiti<tn  ol'  it  ha<l  been  suspended 
for  coniniunicafion  \\y  tlie  Britisli  (iovcrniiient  witli  tlie  Canadian  (iov- 
ernnient,  for  wliicli  piiiposr  an  intcr\al  ol' several  months  liad  been 
allowed  to  ela|)se.  Lord  Salisbury's  atleiition  was  icjH'atedly  recalled 
to  tiie  sid)ject  by  (lie  I  nited  States,  and,  on  tiiose  occasions,  the  answer 
was  that  no  rcjtly  from  the  Canadian  authorities  had  arrived.  I>nring 
this  interval,  Canada  was  aidin;;  with  all  its  powers,  as  adovernment, 
n  supporting:  and  ayjiraxatiiiR  the  practices  wliich  (ireat  Britain  de- 
sired to  repress,  and  tiius  left  lier  in  a  most  (loul)tful  and  disajfreeablo 
attitude  in  her  relations  with  the  United  States. 

Mr.  Phelps  states  further  tiiat— 

In  the  conversation  on  the  b'Jtli  August,  above  mentioned,  1  ajjaiu 
l)ressed  for  the  completion  of  the  convention,  as  tlie  extermination  of 
the  seals  by  Canadian  vessels  was  understood  to  [»e  rapidly  proceediufj. 
His  lordship  in  rejily  did  not  (|Ucstion  tiie  i)ropriety  or  importance  of 
taking  measures  to  prevent  tiie  wanton  destructtion  of  so  valuable  an 
industry,  in  which,  he  remarked,  l']ntjland  liad  a  large  interest  of  its 
own,  but  said  that  the  Canadian  (l('Verninent  objected  to  any  such 
restrictions,  and  that  until  its  consent  (umld  be  obtained.  Her  Majes- 
ty's Government  was  not  \villinj4  to  enter  into  the  convention,  that 
time  would  be  reipiisite  to  bring  tiiis  ab(uit,  and  tiiat  meanwhile  the 
convention  must  wait. 

It  is  very  ajiparer.t  to  me  [says  Mr.  IMielps]  that  the  lUitish  Govern- 
ment will  not  execute  the  desired  convention  without  the  concurrence 
of  Canada.  And  it  is  equally  ai)parent  that  the  c(Uicurrence  of  Canada 
in  any  such  arrangement  is  not  to  be  reasonably  exi)ecte<l.  Certainly 
Canadian  vessels  are  making  profit  out  of  tlie  destruction  of  the  seal 
in  the  breeding  season  in  the  waters  in  ((uestion,  inhuman  and  waste- 
ful as  it  is.  That  it  leads  to  the  speedy  extermination  of  the  animal  is 
no  loss  to  Canada,  because  no  part  of  tli(!se,  seal  (isheries  belong  to  that 
country,  and  the  only  prolit  open  to  it,  iji  connection  with  them,  is  by 
destroying  the  seal  in  the  ojien  sea  during  tlu^  breeiliiig  time,  although 
many  of  the  animals  killed  in  that  way  are  lost,  and  those  saved  are 
worth  much  less  than  when  killed  at  the  projier  time. 

Under  these  circumstances  the  Government  of  the  Uuitttd  States 
must,  in  my  opinion,  either  submit  to  liave  these  valuable  (isheries 
destroyed  or  must  take  measures  to  prevent  their  dcstru<;tion  by 
capturing  the  vessels  employed  in  it.  Between  these  alternatives  it 
does  not  appear  to  me  there  should  be  the  slightest  hesitation. 

It  was  thus  that  Canada  was  permitted  to  intervene,  as  a  Govern- 

ment,  to  prosecute  the  right  of  Canadians  who  were  British  subjects, 


i' 


ii.1 


Is 


h 


arul  not  Oaiuwlian  subjoctn  in  ttic  inti^rnationiil  Honsp,  and  in  a  matter 
as  t<)  wliicrli  Uiii  InrdHhip  rcinaikcul  that  ''England  liad  a  lartje 
interest  of  its  own,"  aiul  tliat  "until  its  (Canada's)  conHvnt  cindd  be 
<d>taiiied  ITcr  Majesty's  (lovcimnent  was  not  willing  to  enter  into  tlie 
«!onvention." 

The  propriety  of  that  intervention  by  (vanada  was  a  matter  between 
those  (Jovernments,  but  the  embarrassment  and  damage  to  the  United 
States  was  increased  by  the  fact  that  (heat  Britain  thus  chaufjed  her 
attitude  on  these  ipiestions  without  <;hanj;in;j  her  vieirno/ichat  iran  riyfit 
in  the  matter,  as  to  the  preserviition  of  the  fur  seals.  The  I  'nited  States 
were  tluis  forced  to  abauflo'i  furtlier  efll'orts  at  cooperation  with  (Jreat 
Hritiiin  and  to  vindicate  their  separate  rights,  and  the  diplomatic  dis- 
cussion was  then  dire(!te(l  to  the  property  rights  of  the  United  States 
in  the  fur  seals  and  the  "llsheries,"and  to  their  rights  of  Jurisdiction  to 
protect  and  preserve  them. 

It  WHS  in  the  manner  I  have  Just  stated  and  under  these  circumstances, 
that  the  1  'nited  States  was  forced  to  yield  her  efforts  for  a  joint  arrange- 
ment with  (heat  Britain  for  the  i)roteetion  of  the  fur  seals  in  Bering 
Sea,  and  to  fall  back  upon  her  rights  as  owner  of  the  seals,  and  of  the 
industry  based  ui»on  the  security  of  these  animals  against  indiscrimi- 
nate slaughter. 

The  situation  was  emergent,  and  the  United  States  acted  upon  it  to 
save  the  seal  herd  and  to  protect  her  rights  and  powers  of  government, 
wliich  were  indispensable  to  that  high  duty,  in  that  remote  and  pecul- 
iar region.  The  separate  and  independent  rights  which  the  United 
States  was  thus  driven  to  assert,  were : 

First.  That  she  had  derived  from  Kussia,  with  the  acquiescence  of 
Great  Britain,  the  exclusive  Jurisdiction  to  control  and  protect  the  fur 
seals  in  Bering  Sea. 

This  claim  has  been  virtually  decided  by  the  tribunal,  adversely  to 
the  United  States,  and  I  will  not  now  discuss  it  further. 

Second.  It  was  claimed  by  the  United  States  Government  that  it  is 
the  owner  of  the  fur  seals  that  are  in  Bering  Sea  or  that  habitually 
resort  to  its  waters  and  islands. 

Third.  Thatifits  claim  of  ownershipoftliesealscannot  be  maintained 
it  has  a  right  of  protection  of  seal  life,  to  be  exerted,  as  far  as  may  be, 
under  its  separate  j towers  of  sovereignty,  and  if  these  are  inadequate 
for  their  protection  then  it  has  a  Just  claim  that  Great  Britain  will 
restrain  her  subjects,  in  conformity  with  concurrent  regulations  which 


\ 


W 


V 


89 


this  txibmial  hIiiiII  «1(>t<>!fni!no  in  itH  uwnnl,  fi-oni  iirtH  tlint  aro  in  lioHtil- 
ify  to  seal  lito  ami  (Icstnictivo  to  it,  taken  as  n  wlii»l«>. 

<Mi  tlu's(>  (|ii<>sti<)ns,  1  now  propose  to  state  my  opinion  as  an  urliitni- 
tor.  I  will  (lisenss  tliis  matter  tnrtlier  in  eonneetion  witli  tlie  ri^lit  of 
pola;;:ie  hnntin;;  ol't'nr  h(^»1.s,  wliieli  is  tlieoiily  hnnian  agency  that  wiirs 
npon  Heal  lite  in  tlie  waters  of  the  oeetin,  and  is  thu  ri);ht  claimed  by 
the  IJritisli  (lovernmcnt  as  beinjif  free  and  nnr«'«trieted.  in  favor  of  h«r 
snbjeets. 

Tiie  elaiin  (»f  protection  of  and  for  seal  lift^  set  np  by  tiie  I'nited 
States  is,  in  its  most  enlarjjjcd  sense,  simply  a  tpiestion  of.jurisdiction  as 
to  which  (lovernmcnt  shall  exer«;iso  the  iMtwer  to  prot«'ct  the  seal  Inrds 
outside  the  territorial  limits  of  both  countries.  Thcrifjlitof  the  United 
States  to  have  snch  protection  is  not  more  real  or  necessary  if  it  is 
held  to  be  the  owner  of  the  |tro]terty,  than  it  is,  as  the  owner  of  an 
industry  which  can  not  exist  if  the  seals  are  destroyed. 

The  industry  on  the  islands,  as  it  is  <'onductcd  by  the  United  States, 
is,  in  every  sense,  lefritimate ;  it  is  useful  to  commerce  and  to  other  y:reat 
industries  in  other  countries;  it  is  hnnniiie  in  its  nu-thods,  and  is  the 
oidy  means  by  which  seal   propai^atiou  can  be  practiced  8U(!cessfully. 

It  is  the  only  method  that  is  in  accordance  With  the  avowed  purpose 
of  both  Governments,  expressed  in  this  treaty,  and  in  various  other 
solemn  utterances,  of  luotecting  and  ])rcscrving  seal  life  in  the  North 
Pacific  Ocean.  But  above  all  this  the  industry  based  on  seal  life  is  the 
only  valuable  resource  of  living  for  the  jjcople  on  the  islands  and  coasts 
of  Bering  Sea,  and  if  this  is  lost  they  must  perish,  if  they  remain  in 
theii'  native  country,  or  else  they  must  bo  fed  and  clothed  from  the 
Treasury  of  the  United  States,  The  preservation  of  the  seals  is,  there- 
fore, a  riglit  and  duty  of  government  on  the  part  of  the  United  States, 
which  it  owes  to  .md  must  exercise  in  behalf  of  those  citi/ens  and 
can  not  abandon.  Tiie  '  aal  industry  also  yields  a  revenue  to  the  U'nited 
States  that  is  vabiuble  ,ind  necessary  for  the  support  of  government 
in  that  iidiospitable  .'cgion. 

If  that  country  can  enjoy  the  advantage  of  its  only  valuable  re 
source — its  only  i)roduction  of  commercial  value — without  material  in- 
terference with  the  i)ositive  rights  of  the  British  or  any  other  i)eople, 
it  is  the  duty  of  tlie  United  States  to  protect  such  means  (»f  existence 
and  civilization  for  the  benefit  of  the  people  there.  In  the  efforts  to 
do  this,  which  have  been  crowned  with  the  most  honorable  8U(^cess,  the 
United  States  have  found  it  necessary  as  a  measure  of  government, 


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IMAGE  EVALUATION 
TEST  lARGET  (MT-3) 


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Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  NY.  14580 

(716)  873-4503 


I 


o\ 


90 


to  protect  the  seal  herd  aart  to  iiulenitiify  its  Treasury  by  levying  a  tax 

a 

upon  the  pelts  of  the  Heals  taiten  under  their  laws  alid  regulations. 

This  public  and  governmental  necessity  an<l  riglit  is  not  denied,  but 
if  it  was,  the  [Jnited  States  would  still  be  the  sole  and  sovereign  judge 
of  that  duty.  In  fiwtt,  the  revenues  so  derive«l  iive  not  sutticient  to  pay 
all  the  exi)euses  of  administration  in  the  perilous  and  costly  police  of  the 
islands  and  the  seas  around  them  for  the  pr<»tection  of  seal  life  and  the 
conduct  of  this  iiulustry. 

If  we  turn  to  the  photoj^raphic  platits  produced  in  evidence,  those 
historians  that  can  not  use  words  to  abuse  the  truth,  we  see  at  a  glance 
what  it  nnist  have  <"ost  the  I'nited  States  already  to  have  converted 
these  desolate  islands  int<»  phu^es  of  <lecent  abode,  and  those  wretched 
savages  into  s(!H'-rei(C(;tiug  iwople  worthy  of  a  place  and  a  name  among 
civilized  and  Christian  peoples.  The  Unittd  States  can  not  afford 
to  allow  the.se  people  to  relapse  into  savage  barbarity.  It  can  not 
abandon  them  to  a  <-ruel  and  destructive  fate,  and  this  tribunal 
can  not  afford  to  stiarch  for  .some  reason  foi*  assisting  such  a  relapse, 
ahnie  in  legal  decisions  made  under  muniei])ai  laws  in  England  or 
elsewhere  in  private  lawsuits  between  private  litigants  about  pheas- 
ants and  rooks  and  rabbits.  These  two  (.iovernments  have  found  it 
necessary,  in  »>rder  to  sectue  just i«'e  and  pi-ace  between  their  people  and 
to  repress  a  slaughter  of  useful  animals,  which  is  wasteful,  destruc- 
tive, unnecessary,  and  inhuman,  to  remove  the  controvev.sy  beyo^id  the 
reach  of  the  intlucnce  of  the  mere  cupidity  of  men  eager  for  private 
gain,  into  the  higher  plane  of  a  contest  between  nations.  It  is  no  longer 
a  case  in  which  men  wlu)  are  citizens  of  the  llniti'd"  States  can  accuse 
theirCiovernmentof  a  mean  purpose  (tf  making  illicit  gains  foritsrevenm^ 
by  a  tax  on  far  seal  pelts,  or  of  aiding  a  in(>!i*»|»oly  granted  to  favorites; 
or  in  which  renegade  citizens  can  be  allowed  t<»  abuse  the  laws  ot  the 
United  States  by  the  surreittitions  ust  of  the  Hag  of  Great  Britain. 

These  (loverumeuts  are  plc'gcd  to  find  a  way,  by  means  of  the  award 
the  tribunal  shall  make,  to  protect  and  j)reserve  these  seals,  and  they 
can  not  and  will  not  permit  them  igain  to  beconu^  the  prey  of  private 
cupidity.  It  is  only  the  private  greed  for  gain  at  any  sacrifice  of  great 
public  interest  and  duties  that  calls  in  (|uestion  the  public  right  and 
duty  of  protecting  the  seals  by  international  action.  To  dignify  this 
opposition  of  the  seekers  for  private  gain  into  a  business  that  rises  above 
the  duty  of  natuins  towards  the  peace  and  prosperity  of  the  world,  the 
reckless  and  destructive  methods  of  the  pelagic  hunter  are  raised  to 


w 


<^m»tB 


R^ 


m^vvwmm^BmK 


91 

the  plane  of  the  honorable  and  useful  indnstries  of  mankind.  This  ia 
called  in  tiie  British  rase  and  in  tho  argmnontsof  HritiHh  counsol  "th« 
indnstry"  of  pelagic  hunti up:  or  flsliin^;  and  it  is  clainuHl  that  it  is 
legitimati>  trade,  in  coioix'tition  \ritli  tli»  trade  and  iiidustvy  conducted 
on  the  I'rihilof  Ishinds  by  tlic  I'nit^d  States.  An  industry  that 
destroys  and  externiinat^is  tlu*  subject  to  which  it  is  applied  is  not 
deserving  of  this  lionorable  dc^tinition. 

But,  treating;  it  as  a  just  and  Imnorable  industry,  will  (treat  liritain, 
now  that  it  has  ralvcu  up  the  duty  of  preserving  and  protecting  this 
fur-seal  indnstry  on  public  aecouiit,  pul>licly  license  and  conduct  fur- 
seal  hunting,  in  the  way  and  with  the  destructive  effect  that  it  is  being 
prosecuted  l)y  its  own  subjects,  and  by  citi/.ens  of  the  United  States 
who  abuse  its  tlag  l>y  nuiking  it  a  shelter  to  ])rotect  them  against 
crinnna'  responsibility  to  their  own  (tovernnient  ? 

Is  it  true  tliat  un<ler  this  treaty,  which  leaves  this  tribunal  to  deal 
with  these  qnestions  as  matters  that  concern  justi<'e,  peacre,  an«l  <"oniity 
between  nations,  and  not  as  mere  private  rights,  the  Government  »)f 
Great  Britain  (ilaiiiis  for  itself,  iis  a  governnient,  <«•  for  its  people,  the 
right  to  pursue  this  industry  in  the  present  destructive  and  cruel  way 
in  which  it  has  been  ;jndis  being  conducted! 

If  the  strict  legal  right  of  pelagic  sealing  attends  and  legitimates  this 
industry  in  all  waters  outside  actual  territorial  limits,  and  makes  it  law- 
ful to  surround  the  seal  islands  with  shii>s  an<I  to  kill  the  animals  as 
they  come  and  go  from  the  isl.inds  to  the  open  sea,  does  (ircat  Britain, 
under  thin  treaty,  claim  that  the  right  now  exists  in  this  unqualified 
extent,  in  favor  of  its  subjects,  or  that  it  comports  with  the  pledges  of 
•this  treaty  that  tli;>  seals  are  to  be  preserved  ami  protected? 

Great  Britain  has  taken  the  riglit  to  pursue  this  industry  from  the 
hands  of  its  subjects,  on  the  grounds  of  public  poli(\v  and  of  duty  to 
the  United  States,  and  has  submitted  them  to  this  trilninal  for  decision. 

If  the  "industry,"  as  it  is  pursued,  is  legitimate  tishing,  and  if  it 
could  have  received  the  san(;tion  of  the  Briti^'ll  Government,  this  seri- 
ous wrong  to  her  subjects  in  depriving  them  of  it  could  not  have  been 
done. 

It  is  said  by  counsel  of  Great  Britain  that,  in  the  case  sup))osed,  of  a 
cordon  of  ships  drawn  up  around  tlie  seal  islands,  waylaying  the  seals 
in  the  breeding  season  as  they  come  from  and  go  to  the  sea  for  food 
and  killing  them  iiuliscriminnt«-Iy,  that  such  an  act  would  be  malicious 
and  the  United  States  would  treat  it  as  a  casus  belli,  witiiin  the  right 
of  nations  under  the  international  law. 


if 


M 


98 

Tlie  right  to  give  such  an  iiitci'))retation  to  snch  conduct  means  thai 
the  industry  of  pelagic  hniitiiig,  lilvc  all  other  pursuits,  however  legiti- 
mate, is  (inali(ie<l  by  the  deiaaiids  of  justice  tliat  arc  due  to  all  other 
nations.  The  international  law  neither  requires  nor  sanctions  a  re««)rt 
to  war  for  the  protection  of  the  plainest  rights,  if  they  can  lie  pea<!0- 
fiilly  nuiintained  without  detriment  or  dishonor. 

This  tribunal  can  not,  in  justice  to  itself,  adopt  the  suggestion  that  it 
must  leave  the  industry  of  pelagic  sealing,  in  view  of  this  treaty  and 
its  great  pur[M)se8,  so  loosely  defined  and  so  free  hi  its  ])rivileges  and 
so  licensed  to  maraud  upon  the  rights  of  the  I'nited  States,  that  an 
assemblage  of  sealing  vessels  in  Bering  Sea,  siitticient  to  destroy  the  seal 
herd  in  one  or  more  seasons,  is  lawful.  If  it  is  malicious  it  is  admitted 
to  be  unlawful  and  that  in  such  case  the  only  remedy  is  war.  In  such 
case  the  United  States,  being  forced  to  judge  of  the  evil  and  to  provii'.e 
the  remedy,  would,  as  any  court  of  justice  must  do,  impute  the  malice 
to  the  nature  and  consequences  of  the  act.  This  tribunal  is  authorized 
to  act  upon  the  same  presumption  in  prohibiting  this  evil. 

Following  u|>  this  right  in  all  parts  of  the  Bering  Sea  and  in  the 
Pacific  Ocean,  the  ITnited  States  would  justly  impv.tt!  malice — a  pur- 
pose of  wrong-doing — to  all  sicts  that  warred  upon  its  revenues,  in 
respect  t^)  fur-seals,  during  the  i)eriod  of  resoit  to  the  islands.  This 
action  of  the  United  States  would  find  its  full  justification  in  the  doc- 
trines stated  by  counsel,  which  should  be  a<loptcd  in  the  award  in  this 
case.  If  it  would  be  right  to  resort  to  war  to  prevent  or  redress  such 
wrongs,  the  more  peaceful  remedy  can  not  be  contrary  to  the  law  of 
nations. 

If  we  follow  the  British  contention  as  to  the  rights  of  pelagic  sealers," 
and  refuse  to  put  any  restraints  upon  pelagic^  sealing,  insteiid  of  mak- 
ing an  aniitnible  settlement  of  the  coiitroversies  tliat  i^alled  us  together 
we  would  leave  new  and  burning  (pit-'Stions  ojien  between  these  Gov- 
ernmer  ts  to  be  settled  by  war.  It  is  M<»t  to  be  expected  that  the  United 
States,  if  left  by  thi;',  tribunal  to  the  duty  of  defending  itself  against 
the  abuse  of  rights  accorded  to  pelagic  hunters,  without  any  restric- 
tions being  imposed  upon  them,  will  fail  to  avail  itself  of  the  necessary 
means  of  doing  that  duty. 

I  now  turn  to  other  views  of  this  subject  which  I  think  are  made  nec- 
essary by  what  has  occurred  in  tliis  case. 

The  unrestricted  right  of  pelagic  sealing  has  been  supported  by  the 
assertion  that  it  is  the  only  way  in  which  a  monopoly  in  the  ftir-seal 


■i 


^Mlpi 


1 


T 


93 

trade,  growing  out  of  the  ownership  of  tlie  seal  isltmds  by  the  ITnif  ed 
States,  can  be  counteracted. 

The  conunoi-irial  attitude  of  the  ITiiitud  Htates  towards  the  supply  of 
the  markets  of  the  world  with  the  pelts  of  the  fur-seal,  is  the  same 
that  all  countries  lutld  in  respt^ct  of  any  -vaiuahle  connnodity  that  is  a 
peculiar  pro<luct  of  the  8«iil  or  climate.  The  incentive  of  commercial 
interchange,  the  necessities  of  the  consumers,  and  the  laws  of  supply 
and  demand  are  simply  left  to  regulate  the  outflow  of  such  productions 
into  the  oi)en  channels  of  commerce. 

If  the  United  States,  alone,  produced  fur  seals,  the  Constitution  of 
that  Government,  which  prohibits  all  duties  (m  export.s,  attbrds  a 
guaranty  that  no  other  nation  has  given  iigainst  the  possibility  of  a 

•  * 

monopoly  in  the  jielts  of  that  animal. 

But  Russia  and  Japan  yet  remain  as  active  competitors  in  this  and 
other  branches  of  the  fur  tnule,  and  their  care  of  this  industry  and  the 
distance  of  their  sealing  islands  from  the  coasts  of  ('anada  and  of  the 
United  States  and  theditliunlties  of  navigation  in  their  seas  are  likely 
to  preserve  a  ^*^ge  proportion  of  their  seal  herds  from  destruction  for 
many  years  to  come.  Miiny  peltries  will  be  thus  supplied  to  commerce, 
in  competition  with  those  that  are  taken  by  the  United  States. 

If  the  regulations  of  seal  hunting,  that  are  found  necessary  by  this 
tribunal  to  preserve  the  spc<'ics,  are  adopted  by  those  Powers  along 
whose  coasts  and  islands  the  fur-seal  formerly  abounded,  the  number 
of  these  aninnils  will  again  increase  in  the  southern  hemisphere  until 
the  world  will  have,  again,  an  abundant  supply. 

The  course  of  the  United  States  in  reference  to  the  care  and  nurture 
of  seal  life  is  directly  opposed  f**  tin*  engrossment  of  this  product  in 
the  way  of  monopoly.  On  the  contrary,  that  (iovcrnment  has  shitwn 
its  anxiety  to  preserve  and  increase  the  stock  by  its  "egulation  of  kill- 
ing on  land,  by  forbearing,  during  three  seasons,  from  taking  seals  in 
excess  of  7,5(HI  which  were  reserved  for  the  support  of  the  natives,  and 
by  reducing  the  number  of  seals  that  tlie  lessees  were  entitled  to  kill 
from  100,000  to  00,000  per  annum,  at  the  i)ossible  risk  of  pecuniary  lia- 
bility to  the  lessees. 

Besides  this,  the  exi>ense  of  agents  and  superintendents  ot  the  islands 
and  of  guarding  them  from  the  raids  of  poachers,  is  very  considerable. 

It  is  dilHiMilt  to  conceive  that  a  government  could  have  done  more,  or 
could  have  acted  in  better  faith  towards  other  powers,  in  a  matter  where 
there  is  an  acknowledged  public  ti'ust  arising  from  its  possession  of  the 
seal  islands. 


94 

Tariff  duties  that  prohibit  or  strongly  tend  lo  the  uxulusioD  of  iin- 
portM,  8o  an  to  benefit  the  special  iudusti  eH  ur  proiluctiontt  of  a  country, 
are  in  the  nature  of  monoptdies  of  the  home  markets  and  are  generally 
enforced  by  enlightened  governments.  And  they  do  not  stop  to  inquire 
aH  to  the  injuries  that  such  laws  may  entail  upon  other  countries. 

TobAcco  is  not  exttuisively  produced  in  Euro[>e,  and  several  of  the 
European  governments  purchase  the  stock,  chiefly  from  xVmerica,  and 
manufacture  and  tsell  it  on  government  account,  and  fix  the  prices  that 
consumers,  in  those  countries,  must  iiay  for  the  manufiictured  article. 
This  monopoly  works  an  injury  to  manufacturers  in  America,  but  no 
one  has  thought  to  unike  complaint  against  the  governments  that  create 
it,  in  respect  to  an  American  production.  Jn  this  important  matter 
the  Congress  of  the  United  States  has  no  power  to  }»rotect  the  pro 
ducers  of  tobacco  or  the  manufacturers  by  an  export  duty  on  tobacco. 

Many  otiier  instances  of  monopoly  of  trade  could  be  cited  to  show 
that  it  is  essentially  a  power  of  government  which  any  nation  may 
rightfully  emidoy  to  provide  for  its  revenues  and  the  welfare  of  its 
people. 

There  is,  really,  no  conceivable  case  or  condition  connected  with  the 
industry  of  the  fur-seal  fisheries  in  which  the  United  States  could 
monopolize  this  trade,  except  by  destroying,  as  rapidly  as  possi- 
ble, the  seals  on  the  islands.  When  a  government  finds  it  necessary 
to  protect  these  animals  against  its  own  people,  as  well  as  against 
those  of  other  countries,  by  assuming  to  itself  their  exclusive  owner- 
ship, a  monopoly  is  the  invitable  resale  and  it  is  indispensable  to  the 
safety  of  the  property.  This  sort  of  mono))()Iy  is  a  iMut  of  the  duty  of 
government  and  of  its  legitimate  powers. 

It  is  both  the  right  and  the  duty  of  the  ITnited  States  to  assume  and 
to  exert  ownership  over  these  animals,  in  (n-der  to  extend  to  them 
the  protection  that  is  due  to  useful  domesticated  animals.  The  legis- 
lation of  nearly  eveiy  government  upon  whose  s^vores  or  islands  fur 
seals  resort  habitually  for  breeding  pur])oses  assumes  over  them  a  gov- 
ernment control  for  their  protection  and  the  right  to  raise  revenue  out 
of  them,  which  is  based  on  the  right  of  a]>propriating  them  to  govern- 
mental uses  and  purposes,  so  that  all  those  governments  are  in  that 
sense,  monopolists.  Such  control  can  not  be  less  than  an  assertion 
of  a  right  of  ))roperty,  for  it  prohibits  all  persons  fron>  asserting  a 
claim  to  them  on  private  -ccouut,  and  it  makes  them  a  source  of  revenue. 
These  may  be  justly  called  laws  for  the  domestication  of  the  fur  seals^ 


96 


•  . 


laws  for  iM)iivertitig  tliem  into  proi)erty  an  (fomcHtit;  animal.^.  Tluiy  differ 
firom  gainelawH,  which  protuct,  wih?  aiiinialM  in  onler  t<)  secure  agr(>uUM' 
supply  for  the  common  use. 
All  this  leginlative  cendcncy  indicates,  in  tlio  plainest  nianno.r,  acon- 
'  census  of  opinion  and  a  comnion  movement  in  tlie  direction  of  clansify- 
iug  fur  Heals  as  domestic  animals  in  respect  to  their  protection  by  posi- 
tive laws;     Why  this  universal  sentiment  should  only  be  resisted  hy 
Cauada  for  puri>ose  of  assisting  her  peojile  in  making  selfish  gain,  is 
an  inquiry  that  oidy  gives  jMiint  to  the  suggestion  that  the  interna- 
tional law  should  conform  t<j  the  general  municipal  law  on  this  subject. 
The  careful  examinations  and  reports  of  many  eminent  naturalists, 
supiwrted  by  a  general  and  distressing  exp<'rii'nce  as  to  the  extinction 
of  the  fur  seals,  first  in  the  southern  hemisphere  and  now  in  the  northern, 
has  set  the  lociU  lawmakers  to  work  in  contriving  statutes  to  stop  these 
destructive  practices  and  to  restore  the  herds  to  their  former  status. 
All  these  laws  are  based  on  th-J'act  that  f/orernment  control  of  the  Hmlx 
in  neceHHiiry  for  their  preticrvation,  and  that  the  seals  are  entitled  (o  the 
same  protection  of  the  /«  w,  united  to  their  nature,  as  other  domestic  animals. 
As  this  subject  is  now  presented  for  the  first  tinu*.  toan  internatitnuvl 
tribuiuil,  aud  in  a  controversy  between  two  great  powers,  and  as  the 
origin  of  the  (juestions  so  presented  is  of  a  very  recent  dat«?,  and  as  no 
direct  precedent  or  discussion  exists  to  guide  or  control  the  judgment 
of  this  tribunal,  a  proper  occasion  is  presented  for  declaring  that  these 
aninuils  should  have  the  :.ame  classification  under  the  iiiternatioiuil 
law  that  they  have  under  the  municijtal  laws  of  all  (•(Hintries  that  fur- 
nish a  resort  for  the  fur  seals  during  tlieir  period  of  compulsory  living 
on  land.    Such  a  declaration  would  not  create  a  new  rule  of  inter- 
national law;  it  would  only  apply  the  rules  that  may  now  be  termed 
universal  law,  in  municipal  legislation,  to  that  area  of  the  earth's  sur- 
face in  whic'h  there  is  no  supreme  law,  because  theie  is  equal  sov- 
ereignty in  all  nations,  and  would  include  in  those  rules  tlie  preserva- 
tion on  the  high  seas  of  aninnils  that  are  so  serviceable  to  man  as  to 
<leservc  ^>  be  classed  as  domestic  aninnvls.     All  useful  animals  are  sub- 
jected to  domestication  by  the  divine  d<^cree  that  gave  to  man  the 
dominion  over  the  beasts  of  the  field  and  the  birds  of  tlie  air. 

Laws  for  the  protection  of  aninnils  are  elaborately  provide<l  and  are 
nnule  cardinal  features  of  all  civil  cod<!S  ami  of  the  moral  code  of  the 
Pentateuch.  This  benign  system  has  expanded  from  age  to  age  so  as 
to  admit  within  the  circle  of  domesticated  animals,  that  are  prot4.>cted 


t 


j- 


96 

by  Iaw.4,  all  that  have  been  fouisd  of  common  use  for  food  or  raiment, 
and  art',  by  their  habits,  capable  of  identification  with  reference  to  sep- 
arate ownership,  such  as  slielJ-fish  yielding  pearls,  oysters,  c^anis, 
corals,  tiponges,  et<!.,  and  a  large  nnniber  of  animals  that  were  not  so 
classed  until  within  a  recent  period. 

The  tendency  has  been  nuiform  to  enlarge  the  scope  of  the  laws  so 
as  to  include  all  animals  within  the  classitlcation  of  domestic  animals,  as 
occasion  has  presented,  au<l  no  aninnils  have  been  permitted  to  be  rele- 
gated to  a  classihcation  as  wild  animals,  that  have  been  once  included 
in  the  protection  extended  by  the  laws  to  domestic  animals.  Any 
other  rule  of  iiction  would  deny  to  all  new  conditions  that  are  valu- 
able, the  protection  of  the  principles  of  international  law. 

The  domestication  of  animals  by  general  usage,  or  by  law,  attaches 
to  them  the  presumption  that  they  arc  exempt  from  slaughter  at  the 
will  of  anyone  who  may  choose  to  kill  them.  Within  the  field  of  oper- 
ation of  such  laws,  sui;h  animals  are  protected  as  all  domestic  animals 
are  protected.  Outsidv!  that  jaris<liction,  they  are  protected  by  comity, 
or  by  the  application  of  principles  of  inte^ii  Monal  law,  deiived  from 
municipal  laws,  or  else  fiom  the  sentiment  or  the  necessity  that  lies 
at  the  foundation  of  municipal  laws. 

Those  principles  are  justly  founded  on  the  general  usefulness  of  the 
animals  to  mankind,  and  the  consequent  necessity  for  giving  them  pro- 
tection. The  international  law  should  attach  to  them  the  same  pre- 
sumption of  domesticity  that  is  attached  to  them  in  such  cases  by  the 
municipal  law. 

In  matters  like  those  submitted  t<>  us  the  opportunity  occurs  for  a 
formal  declaration,  which,  by  treaty  agreement,  is  made  obligatory  upon 
two  great  powers,  of  the  relation  that  these  animals  should  bear  to  the 
question  of  their  preservation,  in  the  international  law.  That  relation 
is  uniform  and  unbroken,  except  in  the  laws  and  Uisage..  of  Canada,  in 
all  the  legislation  of  all  the  municipalities  tliat  have  any  interest  in  the 
subject.  It  is  nothing  less,  in  etlect,  than  a  declaration  of  those  legis- 
latures that  fur  seals,  by  reason  of  their  value,  their  helplessne^  to  resist 
or  escape  from  the  power  of  man  during  a  large  part  of  every  spring, 
summer  and  autumn,  their  docility  and  the  absolute  necessity  of  giving 
them  that  protection  by  positive  law  that  nature  has  denied  to  them, 
should  be  classed  and  are  entitled  to  be  classed  in  favorem  viUe,  as 
domesticated  animals. 

I  can  not  understand  how  it  can  be  possible,  in  view  of  the  facts,  that 


.. 


1 


ri^iEj^'^ 


•'VXtK'- 


97 


this  Tribunal  slinald  tlecliire  that  thoy  are  wiUt  aiiiinals  in  contempla- 
tion of  law,  and  shall  hav«  no  more  Hhelter  afjainst  the  greed  of  man, 
assisted  by  his  genius  in  the  invention  of  instniments  of  destrnetion, 
than  they  have  against  tln^  kilhu  whale.  That  their  only  i>rot«etion 
shall  be  their  cajHieity,  in  the  water,  Ut  es('ai>e  pursuit,  out  «»f  which 
clement  they  must  8i)ond  nearly  half  the  i)erio<l  of  their  lives,  is  too 
imperfe<!t  a  shelter  for  sueh  a  valuable  contribution  to  tommeree  as 
these  animals  yield,  to  receive  the  sanction  of  the  great  commercial 
nations. 

11495  M 7 


REOULATIONS. 

TUB  TBinUNAL,  HAVINlJ  DKCIDEU  THE  OTIIBtt  QUESTIONS  SUBMITTED 
TO  THEM  I'NDEB  THK  TREATY,  PBOCEEDEU  TO  THE  CON8IDKKATION 
OF  THE  SUn.IEOT  OF  PIIOPEB  RE(JlLATIONS  FOR  THE  PROTECTION 
AND  PRESERVATION  OF  FIR  SEALS  IN  THE  NORTH  PACIFIC  OCEAN, 
INCLUDING  RERINO  SEA. 

On  thiH  to\nv.  Mr.  8«iiat<>r  Morgan  delivered  ttie  following  opinion: 

I  have  heretofore  inHisted  that  when  eoniMirront  regulations  are 
atlupted  they  will  be  the  result  of  the  power  of  tlie  Tribunal  to  agree 
upon  and  stip'jlate  a  fcaMireof  <lie  treaty,  in  respect  of  pelagic  bunt- 
ing of  fur'-sealH,  as  betw^fcn  the  two  Governments;  as  much  so,  as  if 
the  regulations  luid  been  formally  agreed  upon  and  written  iDt«)  tliu 
boily  of  the  convention  under  which  we  are  acting.  I  understand  that 
this  point  is  agreed  to  on  the  part  of  all  the  Arbitrators,  and  I  so 
state  it. 

(2)  The  Arbitrators,  in  the  exercise  of  these  powers,  must  act  as 
impartial  negotiators,  as  they  hold  their  authority  from  both  the  High 
Contracting  Parties,  under  the  treaty;  and,  their  award  being  final,  it 
is  sanctioned  and  sustained,  if  it  is  within  the  purview  of  their  author- 
ity, by  the  sovereign  powers  of  both  Governments,  pledged  in  the 
treaty  in  advance  of  the  de<-ision  of  the  Arbitrators.  1  also  under- 
stand that  this  [loint  is  not  disputed. 

(.3)  The  regulations  we  shall  a(V>pt  are  in  no  sense  judicial  decisions^ 
though  they  are  based  upon  principles  of  law  declared  by  the  Tribunal, 
nor  is  the  power,  or  duty,  of  making  them,  so  as  to  i)rotectand  preserve 
the  fur-seals,  restriiined  or  controlled  so  as  to  conform  to  the  personal 
interests  of  pelagic  hunters  or  the  national  interests  of  the  United 
States.  The  two  Governments  have  removed  such  considerations  from 
the  scope  of  our  duties  by  assuming  absolute  control  of  the  entire 
svibject,  which  was  found  necessary  to  be  done  in  order  to  properly 
protect  and  preserve  the  fur-seals  in  the  interests  of  commerce  and 
humanity.  In  like  manner  they  have  excluded  from  our  consideration, 
98 


"*4  urinipij.. 


99 


according  to  the  decision  of  the  Tribunal,  the  qiicHtion  of  gain  or 
advantage  to  the  United  States,  a»  a  (Government,  rcHulting  from  the 
preservation  of  seal  life. 

The  modm  eircudi,  established  for  three  consecutive  sealing  scasonH 
took  the  highest  possible  governmental  authority  over  the  fur-seals  iu 
Bering  S'^a,  and  during  those  seasons  prohibited  all  iiclagic  sealing  in 
those  waters.  This  is  a  virtual  declaration  that  fur-seals,  while  swim- 
ming freely  in  the  ocean,  are  cai)abh'  of  being  treated  as  property  and 
are  subject  to  the  care  of  the  two  ( Govern  raents. 

The  last  of  these  agreements  is  incorporated  with  and  made  a  part 
of  the  treaty  of  February  li»,  I8»2. 

■  (4)  The  true  attitmle  of  the  rjuestion  wo  are  now  to  consider  is 
simply  this,  to  use  the  language  of  the  treaty :  "  The  arbitrators  shall 
then  determine  what  concurrent  regulations  outside  the  Jurisdictional 
limits  of  the  respective  governments  are  necessary,  and  over  what 
waters  such  regulations  should  extend,''  "for  the  proper  protection  and 
preservation  of  the  fur-seals  in  or  habitually  resorting  to  the  Bering 
Sea." 

It  is  not  possible  that  the  power  tt)  determine  regulations  to  operate 
outside  the  jurisdiction  of  the  two  tJovernments,  which  can  oidy  include 
pelagic  sealing  in  the  waters  of  the  Tacific  Oceaii  and  Bering  Sea 
outside  the  territt)rial  limits,  can  be  so  stretched,  without  a  bohl  usurpa- 
tion, as  to  include  the  killing  of  seals  on  the  land. 

It  is  quite  as  impossible  to  suppose  that  either  government  intended 
that  by  concurrent  regulations  this  Tribunal  could  provide  laws  for 
either  Government  that  should  o|)enite  as  laws  within  the  actual  bound- 
aries of  tJie  other. 

When  the  power  is  given  only  to  determine  "over  what  waters  such 
regulations  should  extend,"  it  is  not  possible  to  conceive  that  the  Tri- 
bunal has  the  power  to  determine  over  what  lands  or  islands  they 
shall  extend.  Tliis  power  is  so  clearly  withheld  from  this  Tribunal  by 
the  treaty  that  its  exercise  would  be  ultra  vires,  in  any  form  or  for  any 
conceivable  purp«)8e. 

So  that  we  have  in  the  body  of  this  treaty  the  statement  and  actual 
enforcement  of  the  power  of  the  British  (Jovernment  to  dismiss  from 
consideration  the  personal  rights  of  its  subjects,  under  international 
law,  in  respect  to  pelagic  hunting,  and  the  assumption  by  that  Govern- 
ment of  supreme  and  absolute  control  over  them  and  their  rights.  All 
this  was  done  for  the  purpose  of  making  the  matter  of  concurrent  reg- 


4MI 


i'i 


100 

iilatioiiH  a  question  between  tlie  two  (iov(<riiiiieiitH, /<«  be  controlled  by 
the  mutual  intv.rnnthnal  policy  of  inotntiiuj  tinil  preHirehiti  thr  Ahmkan 
Heals,  on  to  irhirh  /mrpouc  both  (htrei'mtivntH  ore  in  uvvoiul.  Tlioy  ngreo 
HM  U>  tlie  iiintioiiiil  duty  of  botli  (ioverniiientH  to  protect  and  preHerve 
tliese  fiir-HotilM,  and  liavn  only  dl^4agl'ee(l  aH  to  tlio  riglitfid  aijd  boHt 
method  ot'exoenting  tiiJH  duty. 

(a)  There  Im  no  mJHtakiii;;  th«i  uxa<!t  nature  and  extent  of  tlic  {Hiwur 
e<Hiferred  on  this  Trihuinil.  It  in  «in)ply  tlie  pciwer  to  deterniinu  eon- 
current  reguhitions  fo»'  the  i)roper  prot<H-tion  and  ineMervation  of  the 
fur-H'.'alH  in  or  inil)itindly  resorting  to  Herin;;  Sea,  and  to  designate 
the  Witters  that  sliouhl  be  incbnled  in  sueli  regulations. 

If  this  Tribunal  bases  its  award  upon  the  etVect  that  sueli  regulatiouH 
are  t^ihave  on  Mie  rights  or  jirolits  of  i»ehigi(t  seahM-s,  they  rebuke  both 
(iovernnientsfur  iiavingassunied  tiie  wlade  responsibility  of  that  subject,, 
and  for  having  retired  fioni  view  this  private  rights  of  their  citiKenu 
under  tln^  international  law,  and  for  having  subjeeted  them  to  such 
municipal  laws  of  the  lespeetivi;  (Jovernments,  to  be  enacted  in  con- 
formity with  the  award,  as  shall  accord  with  the  avowed  public  policy 
of  those  (lovernments  to  preserve  and  protect  the  fur-seals. 

These  Governments  have  not  invited  us  to  decide  how  far  this 
policy,  mutually  agreed  to  and  declared  in  the  most  une(|uivocal  terms, 
shall  be  obstructed  by  our  ettbrts  to  take  <!are  of  the  interests  of  their 
citizens  engaged  in  pelagic  sealing.  They  have  assumed  that  duty 
and  will  doubtless  respond  to  it. 

Both  (rovernnients  would  r<*joice  if  the  preservation  and  proteetiitn 
of  the  seals  in  question  would  admit  of  the  greatest  extent  of  pelagic 
hunting  by  their  citizens  consistent  witii  the  prudent  and  humane 
treatuMMit  of  these  usetul  animals.  Btit  they  carefully  «*(insidered  that 
question  and  appointed  a  joint  Commissirtu  to  make  exannnation  into 
all  its  bearings.  That  CommissioM  made  a  Joint  report  before  the 
treaty,  signed  Febriuiry  21),  181H>,  had  been  ratitied  by  either  Govern- 
ment, in  .vhich  they  say:  "5.  We  are  in  thoiough  agreement  that,  for 
industrial  as  well  as  for  other  obvious  n^asons,  it  is  incund)ent  u|H)n  all 
nationH,  and  parti(!ularly  upon  those  having  direct  conmiercial  interests 
in  fur-seals,  to  provide  for  their  protection  and  preservation;"  and 
further,  they  declare  that^ — "7.  We  find  that,  since  the  Alaskan  i)ur- 
chase,  a  marked  diminution  in  the  number  of  seals  on,  and  habitually 
resorting  to,  tlu^  Pribilof  Islands  has  taken  place;  that  it  has  been 
cumulative  in  ett'ect,  and  that  it  is  the  result  of  excessive  killing  by  man." 


■■■ 


101 

Tlu'HO  two  NiitloiiH,  nrtiiiK  on  tills  n<|M»ii  ami  ii|m)ii  oIIkt  iiMoeitiiiiitMl 
flM-tH  of  tim  pravost  cliaraclcr,  took  Hir  sulijcvt  iiiln  thiir  oirii  IkiiuIm  and 
proviiUMl  lor  tlif  dt'tcrniinntii-u  nrcominrnit  n'^nlnlions  by  tliis  Tribn- 
nal,  to  operate  ontsith^  tln'.inrisdictional  liinitsot' tlic  IvvtiiJovi'mnicnts, 
on  the  wutiT  and  n«)t  on  tlie  land,  for  tlie  proteition  and  piwHcrvatioii 
of  those  fur  seals. 

The  Hnhject  <»f  repnl-iiin);  the  s«'al  herds  on  land  was  not  mentioned 
between  the  Go' "innieiils  in  their  iie(,'otiations.  nor  in  llie  treaty; 
<lonl»tIess  for  t.  .eason  tinit  <'.reat  liritaiii  saw  tiial  it  was  tlie  interest 
of  the  United  States  to  proteet  and  preserve  the  seals  anil  to  promote 
their  inerease,  and  luwl  no  eiiuse  then  or  siiue  to  doubt  the  j,'<»<»d  faith 
of  the  United  Shites  .n  (he  use  of  every  means  that  would  contribute  to 
that  end. 

"The  excessive  killing  by  man"  thn*  tlie  CommisHioner-t  africfd  to 
report  eoiihl  n<»t  have  lieeii  tlie  Uilliiiv:  by  tlu'  I'liiti'd  States  on  the 
islands  of  St.  I'aul  aiid  St.  George:  otherwise,  that  fact  wouhl  have  been 
mentioned  and  made  the  subjeet  of  negotiation. 

The  protection  and  preservation  of  the  seals  ajiainst  excessive  kill- 
ing, is  the  killing  upon  the  waters  (uitside  the  jurisdictional  limits  of 
both  c<tuntries.  It  is  beyond  a  reasonable  doubt  that  it  was  pelagic 
killing  that  was  considered  by  the  I'nited  States  and  (ireat  Britain 
as  being  so  destructive  to  seal  lite  as  to  make  it  incumbent  upon  all 
natiom  to  provide  for  their  jirotectiim  and  preservation,  and  was  especi- 
ally the  duty  of  these  two  i»owcrs.  To  do  this,  these  (ioveriiments 
agreed  with  each  other  to  place  this  question  ui»oii  the  high  and  just 
ground  of  international  duty,  disrcgaidiiig  the  profit  that  might  accrue 
to  the  subjects  and  citizens  of  both  countries  froni  thi«  indiscriminate 
slaughter  of  the  t'lir-seals,  or  to  the  United  States  from  preserving  and 
increasing  the  number  of  fiu-sealsi 

(6)  This  Tribunal  is  to  maKe  regulations  that  apply  to  this  herd  tw 
itn  preHenteon'1'.lhm,iUH\  not  v.ith  referen(!e  to  some  former  condition. 

The  most  «'ons|iicuous  fact  .11  the'presLMit  situation,  and  the  danger- 
ous fact  of  the  inevitabh'  future,  is  this,  that  (he  fur-seals  will  disap- 
pear rapidly  if  thejielagic  liiiiit«'r  is  iible  to  make  that  business  profitable 
oil  the  sea  and  to  make  it  uiiprolitabli'  on  the  Pribilof  Tslands.  I'Jither 
of  these  reaultn  will  (h-xtroji  tlif/iirscalx  rapidly,  ami  both  0/ Hum  would 
make  the  f^fHtruction  mtddi'ii.  <iiid  that  witlioiif  rimed ji.  And  if  on,'  rcHult 
enntieH,  the  other  must  follow  ttpcedihi. 
This  treaty  also  requires  this  Tribunal  toconsider  and  decide  concern- 


\i 


102 

ing  the  rigUtsof  thesubjcctK  and  citi/oiiHof  either  c(>imtry  as  regards  the 
taking  of  fiir-Kcals  in  or  habitually  resorting  to  Bering  Sea.  Whether 
tlii8  question  lias  been  decided  or  remains  to  be  decided  the  Tribunal 
has  not  yet  come  to  any  resolution.  That  subject,  though  I  have 
demanded  its  separate  examination  and  decision,  has  been  ]>assedover 
by  the  Tribunal,  but  in  either  case  I  will  assume  that  their  rights 
must  be  e<iual  and  that  there  will  be  no  discrimination  between  the 
people  oi  the  two  countries  as  to  such  rights. 

If  the  right  is  given  them  by  tiiis  award  to  siicmr  the  North  Pacific 
Ocean  and  Bering  Sea  at  all  sciisonsof  theyear,  with  all  descriptions  of 
Hrearms  except  rides,  and  with  such  number  of  vessels  as  may  be 
tempted  into  the  business  by  its  profits,  assisted  by  steamers  to  carry  off 
the  catch  so  as  to  keep  the  hunters  steadily  employed  in  killing  seals,  it 
will  not  be  possible  for  the  Congress  to  prevent,  the  citizens  of  the 
United  States  from  sharing  in  the  raids  upon  the  seals  equally  with 
British  subjects.  I  mean  that  the  people  of  the  Onited  States  would 
withdraw  their  support,  as  they  should  do,  from  any  body  of  representa- 
tives  that  would  tolerate  such  an  injustice,  and  nil  seal  hunters  and 
many  thousands  who  are  not,  would  rush  in  to  destroy  them  as  they 
did  in  18G8. 

We  can  not  expect  to  impose  upon  the  United  States  the  duty  of 
keeping  up  this  expensive  and  harassing  plan  that  it  now  maintains  in 
good  faith  and  perfect  honor  for  the  presei'vation  of  the  fur-seals  when 
■we  condemn  the  seals  to  certain  destruction  in  the  fiice  of  the  avowed 
policy  of  both  countries  that  they  should  be  protected  and  preserved. 

We  can  not  expect  the  United  States  to  maintain  its  i)rohibition  of 
pelagic  sealing  in  Bering  Sea  as  to  its  own  citizens  when  we  enjoin 
it  upon  that  Government,  as  a  moral  duty  and  a  treaty  obligation,  to 
repeal  her  laws  as  to  restrictions  upon  British  subjects  in  that  sea. 

This  is  what  the  United  Statep  nuist  do,  under  (ioncurrent  regula- 
tions framed  upon  the  plan  of  Sir  John  Thompson,  or  else  it  must  vio- 
late the  spirit  of  the  treaty,  if  not  its  letter,  as  it  is  to  be  declared  in 
such  an  award,  because  of  the  disadvantage  to  its  own  people.  We 
can  not  thus  condemn  the  policy  of  the  United  States  in  its  faithful 
ettbrts  to  preserve  seal  life,  and  expect  that  (iovernment  to  maintain 
its  rigorous  laws  against  its  own  citizens. 

If  we  extend  an  invitation  to  other  nations  to  enjoy  equally  with" 
Great  Britain  and  the  United  States  the  looting  of  the  seal  herd  in 
the  North  Pacific  and  in  Bering  Sea,  we  pledge  the  honor  of  these 


t 


4i 


mmmmm 


103 

GovbriiiiientH  that  tlioy  will  sustain  the  rights  of  all  nations,  both  in  a 
moral  and  national  seiisu,  in  like  invasions  of  the  herds  of  Kussia  and 
Japan. 

The  flag  of  the  most  insignificant  power  in  the  world  will  have  the 
pledge,  through  such  an  award,  of  perfect  iinniunity  and  protection 
while  raiding  the  North  Pacific  Ocean  and  Bering  Sea  with  all  imple- 
ments of  destruction,  not  excepting  any,  and  in  such  number  of  ves- 
sels and  of  such  tonnage  and  description  as  they  choose,  not  excluding 
steamers,  and  without  having  a  license  or  a  distinctive  flag. 

A  recent  event  has  demonstrated  the  fact,  if  it  needed  any  demon- 
stration (as  it  does  not),  that  the  little  kingdom  of  Hawaii  will,  through 
the  help  of  renegades  of  the  United  States  and  Canada,  grow  rich  in 
renting  her  flag  to  them  in  order  to  take  advantage  of  the  scheme 
presented  here  by  Great  Britain  as  her  project  of  regulations.  Why 
these  two  Governments  should  thus  create  such  a  destructive  fatality 
to  seal  life  through  the  award  of  this  Tribunal  while  professing  the  wish 
and  purpose  of  protecting  it  is  quite  beyond  my  ability  to  comprehend. 

The  regulations  submitted  by  the  respective  Governments  for  the 
consideration  of  this  Tribunal  must  be  regarded  as  their  oflicial  state- 
ments of  the  basis  and  plan  of  settlement  proposed  by  each,  and  not  as 
the  ultimatum  of  each  Government,  between  which  we  are  to  choose  by 
accepting  the  one  and  rejeating  the  other.  And,  as  no  plan  or  formula- 
tion of  regulations  is  stated  in  the  treaty  or  alluded  to,  this  subject  is  left 
to  the  judgment  of  this  Tribunal,  which  is  at  liberty  to  discard  both 
schemes  or  to  a<lopt  regulations  that  neither  (Jovernment  has  sug- 
gested. The  only  limitations  on  tiie  jiower  of  the  Tribunal  in  this 
regard  is,  that  the  regulations  shall  be  concurrent  and,  therefore, 
uniform  as  to  both  Governments,  that  they  shall  relate  t<»  waters 
that  are  outside  the  jurisdictional  limits  of  either  Government,  and 
that  they  shall  be  "necessary  •  •  •  for  the  proper  protection  and 
preservation  of  the  fur-seal  in  or  habitually  resorting  to  liehring  Sea." 

The  treaty  also  furnishes  a  guide  as  to  the  general  nature  of  the  reg- 
ulations, that  they  should  be  such  as  to  claim,  for  their  international 
8upport,the  adhesion  of  other  p:)wers  to  such  regulations. 

It  will  be  observed  that  the  invitation  of  the  two  Governments  to 
other  powers,  that  they  wilt  give  their  adhesion  to  this  treaty,  relates 
only  to  the  regulations  we  fire  to  provide.  Ithas  no  relation  to  any  other 
part  of  the  treaty.  The  object  of  this  invitation  was  not  so  much  to 
prevent  other  i)ower8  f'om  encouraging  pelagic  sealing  in  Bering  Sea, 


I  IHMJ  f  ■ 


104 


m 


or  tlio  Ncirtli  Pjurific  Ocean,  as  it  was  to  obtain  tlieir  consent  to  regu- 
lations that  would  preserve!  and  protect  fur-seals  in  the  waters  in  which 
they  are  found  anywhere  in  -.Ne  wiu-Ul,  if  tliey  are  generally  u^lherred  to. 

No  nation  except  (Ireat  i^ritain  lias  found  itself  interested  in  the 
hunting  of  the  seal  herd  that  reseirts  to  Uering  Sea.  The  people  of 
other  nations  have  not  carried  on  pelagic  sealing  in  that  herd,  or  in 
the  waters  of  ^he  North  Pacific  or  Bernig  Sea.  If  the  regulations 
that  we  adopt  aie  founded  upon  or  uioditied  by  the  peculiar  interests 
of  Canada,  or  the  United  States  (as  is  proposed  in  the  British  case), 
the  other  powers  will  find  that  they  are  in  no  sense  iuternatiuiiai,  but 
are  entirely  local;  that  they  adopt  no  general  i)rinciple  of  action  for 
the  protection  and  preservation  of  fur-seals,  but  are  only  an  expedient 
devised  to  get  rid  of  a  particular  controversy  between  the  United 
States  and  one  of  the  provinces  of  Great  ]iritain.  We  could  not  ask 
other  -^iwers  to  adhere  to  reguhitions  based  (.n  grounds  so  nam  w  and 
selfish.  It  would  be  in  ett'ect  only  a  request  that  they  would  agree 
not  to  interfere  with  this  herd  of  seals  while  they  are  being  divided, 
according  to  an  award  of  this  Tribunal  which  appoitions  them  between 
the  United  States  and  Canadian  sealers. 

The  regulations  presented  by  Sir  John  Tlunnpson  appear  to  be  based 
upon  the  recent  moduK  vircwH  agreed  upon  between  Russia  and  Great 
Britain,  to  which  the  attention  of  the  Trib  lual  has  been  called.  Hussia 
appears  to  have  accei)ted  that  arrangement  a.-<  a  mere  temporary  check 
upon  the  aggressions  of  the  pelagic  sealer,  and  \\wi  accompanied  it 
with  reservationa  and  prote'  utions  that  show  her  .extreme  unwilling- 
ness to  adopt  it  as  the  fi'.a)  J  •  mitiovs  of  'uti  rights. 

If  the  award  of  this  Tribu.^nl  sJi*  ild  thus  conform  to  the  plan 
adopted  in  the  Anglo-ilussiau  mo:'uK  VfVfndi,  it  wil'  either  force  Kussia 
into  terms  of  final  agreement  w-;  Great  Britain  that  she  would  not 
otherwise  ado)>t,  or  it  will  show  a  wide  distinction  between  Kussia  and 
the  United  States  in  treating  vrith  Great  Britain  about  a  subject  of 
the  same  character,  ai»d  in  reference  to  the  same  body  of  waters, 
litissia  could  not  rinally  adhere  to  the  regulations  proposed  in  the  pro- 
gramme presented  l)y  Sir  John  Thompson,  without  agreeing  to  all  that 
Great  Britain  is  demanding  of  her,  against  much  of  which  she  is 
firmly  p^ot^sting. 

Before  stating  the  form  Of  regulations  to  which  I  would  prefer 
to  give  the  support  of  my  voice  in  this  Tribunal,  I  will  state  some 
concluoious  of  fact  that  I  have  drawn  from  the  evidence  as  to  the 


(. 


i! 


105 

uliiirsu;tor  of  tlio  rejjiilations  whirh  iiic  iiecesHiiry  to  cxerutii  tli«  piir- 
jKwe  (if  botli  tiovtM'iiiiients  to  pit'servo  uimI  |)rot<'ct  the  fiu-sciiKs  of  tlui 
Alaskiiii  herd,  and  that  wouhl  also  answer  a  boiietii-ciit  purpose  in 
acconiplishiii^  tliu  niiiversally  (Icchnctl  wish  of  all  iiatioiis  inteiestcd 
in  the.  subject  of  prot.ectinjr  and  pir,servi:i{;f  seal  life,  and  in  repaii-in^i; 
tlie  daniat^e  tliat  has  been  intlicted  upon  it  by  raiders  iw  tiie  absence 
of  governmental  |)rotection.  This,  1  take  it,  is  the  real  ground  uiMin 
which  other  powers  are  to  be  invited  to  give  their  adhesion  to  the  reg- 
ulations that  this  Tribunal  may  determine  ami  award  as  between 
Great  Britain  and  the  United  States. 

The  regulations,  like  all  enactments  of  laws  that  are  remedial  in 
their  character,  are  to  b(v  framed  with  a  vii'w  to  giving  relief  against 
an  existing  evil,  and  this  can  oidy  be  wisely  and  Justly  accomplished 
when  the  nature  and  extent  of  the  evil  is  first  ascertained.  When  that 
is  done,  the  nature  of  the  evil  suggests  the  character  of  the  remedy, 
and  we  can  not  frame  the  remedy  that  we  are  to  provide;  so  as  to  merely 
check  the  evil  for  a  time,  leaving  it  to  burrow  and  work  its  havoc  at  a 
date  that  is  more  accei»tuble  only  because  it  is  moi-e  distant  from  us. 
The  occasion  requires  a  just,  serious,  and  liini  attitude  as  to  a  ques- 
tion of  great  importance  to  the  whole  world. 

I  will  now  state,  as  I  gather  from  all  the  evidence  before  us,  what  is 
the  evil  that  these  fSovernments  have  tbund  to  be  so  threatening  to 
.seal  life  in  the  Alaskan  herd  as  to  draw  tliem  into  an  agreement  that 
it  should  be  repressed  by  their  concurrent  action. 

1  will  not  attempt  to  examine  again  the  details  of  the  evidence,  so 
thoroughly  presented  and  with  sucli  judicial  impartiality,  by  Mr. 
Justice  Harlan,  I  (lan  lind  no  flaw  or  omission  in  his  careful  state- 
ment of  the  evidence,  or  in  the  conclusions  that  he  drew  from  it  as  to 
matters  of  fact.  I  believe  that  Im'  .stated  the  exact  truth  of  the  situa- 
tion, and  I  fully  concur  in  his  treatment  of  the  subject  and  in  the 
conclusions  that  he  has  reacrhed. 

The  present  situation,  as  I  understand  it,  is  as  follows,  as  shown  by 
a  comparison  of  the  I'libilof  and  pelagic  cat(;hes: 


Year. 


18(10 

IHBl 

1882 

I88a 

TotaJ 

•  Gstlniatod, 


I'libilof 
IhIhikIh. 


Totiil 
pi'lHKii' 

Cfttlll. 


2l,2:i4  .'il.ftW 

12,071  «8.0O,( 

7,5011  7.1,  S04 

7.  .500  '80,000  I 


48,3l'S       273, 04g 


106 

III  1889  the  Piibilof  catch  was  102,01 7,  which  fell  off  to  21,234  in 
18!H>,  and  this  was  all  that  the  islaiidM  would  yield  of  killable  seals, 
leaviiij^  a  dcHi-it,  as  compared  with  the  previous  year,  of  81,379  seals 
(iimii  the  islands.  If  this  contrast  in  tlie  number  of  seals  that  could 
be  taken  on  the  islands  in  1889  and  1890  was  due  to  the  overkilling 
of  nuiles  on  the  islands,  and  not  to  pelagic  hunting,  the  falling  off  of 
numbers  would  have  been  indicated  in  each  of  the  six  years  prior  to 
1889.  No  one  has  asserted  such  a  fa(;t,and  we  know  that  a  male  seal  must 
be  G  years  old  before  he  is  able  to  take  up  and  maintain  a  harem  on 
the  niokeries.  So  that  this  sudden  falling  off  betwet^i  1889  and  1890, 
if  it  Avas  due  to  an  excessive  killing  of  males,  must  have  occurred  at 
least  as  early  as  1882.  This  is  n(»t  true,  and  no  one  pretends  that  it  is. 
The  kilting  of  51,05")  seals  that  the  pelagic  hunters  got,  and  at  least 
threefold  that  number,  including  those  that  were  lost,  must  have 
resvched  300,000  seals  that  were  destroyed.  Of  this  nund)er,  three- 
fourths  were  females,  that  are  not  killable  seals  on  the  islands,  and  are 
not  counted  in  the  I'ribilof  catch. 

The  verification  of  this  calculation  is  almost  perfec  t  in  1892,  when 
the  pelagic  sealers  tool  73,000  seals,  and  in  1891  when  they  t«ok 
08,000.  The  close  apiu'oximation  of  these  figures  shows  that  the  loss 
of  the  seals  <ni  tlu^  islands  was  due  to  ])elagic  sealing,  and  noi  to 
the  want  of  virility  in  the  bulls  on  the  breeding  grounds,  or  to  any  other 
cause. 

That  the  process  which  has  acttndly  depleted  the  seal  herd  in  four 
years  to  the  extent  of  5(»9,0(55  (273,(MIO  of  which  were  fennales),  in  an 
that  rctiuireit  to  he  rcmcdkd,  for  the  sake  of  the  protection  and  preH';rva- 
tion  of  Heal  life,  no  one  can  doubt,  as  it  seems  to  me.  This  jirogressive 
depletion  of  this  herd  of  seals  can  not  fail  to  destroy  them  very  soon, 
and,  in  the  meantime,  to  <lei)rive  the  United  States  of  all  possible 
mlviintage  and  compensation  (lerive<l  from  its  efforts  to  save  the  species. 
What  the  United  States  has  <lone,  or  omitted  to  «lo,  to  deserve  treat- 
ment at  the  hands  of  this  Tribunal  that  will  expose  its  lawful  indus- 
tries to  ruin,  its  revenues  to  d('i<letion,  and  i*'S  wards  on  the  Pribilof 
Islands  to  the  loss  of  their  only  valuable  industry  will  be  an  inquiry 
that  will  seriously  challenge  the  justice  of  such  an  award,  in  the  esti- 
mate of  the  civilizi'd  wiu-ld. 

The  evil  to  be  provided  against  by  this  Tribunal  is,  clearly,  pelajfic 
Healing  irith  iirearmH. 

If  there  is,  or  has  been,  any  detriment  to  the  seal  herd  from  the 


V 


ii 


Jt. 


107 

treatment  of  tlie  Uiiittnl  States,  ou  tlie  islands,  tlm  facitHon  thi8Hnltj<><-t 
wore  not  nn known  to  Gn^at  Uritian  wlien  thu  treaty  was  nnuh;  and 
l)Cloi'e  ratifications  were  exeliaii},'<'d.  Tills  sulijeet  was  not  referred  to 
in  any-of  tlie  correspontlenec  between  tlie  (iovernnients,  and  tlie  treaty 
is  silent  as  to  tliis  snpposed  niisinana<>enient. 

Will  the  Tribunal,  in  such  a  case,  niaku  an  objection  to  protectiii}; 
and  preserving  the  fur-seals  on  the  water  because^  Great  llritaiii  inis 
not  thought  it  proper  or  necessary  to  call  tlic  methods  into  question, 
or  the  United  States  into  account,  for  its  manner  of  <lealing  with  that 
subject  on  land'  True,  if  it  can  be  shown  tiiat  the  depletion  of  the 
herd  is  due  to  tiiat  cause,  and  not  to])eiiigic  hunting,  tlui^t  is  a  Just  and 
proper  incjuiry.  If  it  is  due  to  both  causes,  tiiis  Tribunal  will  deal  with 
the  pvlai/ic  evil,  that  is  mtbmitted  to  its  comvlerution,  and  leave  it  to  the 
nations  concca-ned  in  the  i)rotection  of  seal  life  to  ,ieal  tcith  the  eril  on 
land. 

If  the  United  States  are  not  so  wise  in  caring  for  the  seals  on  land 
as  the  pelagic  hunters  are  in  caring  for  them  at  sea,  as  seems  to  b«! 
asserted,  they  are  quite  as  earnest  in  the  wisli  to  d*)  so.  They  destroy 
no  female  seals;  while  the  pelagic  luinter  never  spai'es one.  They  do 
not  lire  upon  the  breeding  rookeries  when  ^iie  seals  are  massed,  many 
of  them  asleep,  witli  double-barrelled  shotguns  and  buck-shot  car- 
tridges.   They  do  not  kill  indiscriminately  all  seals  that  come  in  sight. 

The  United  States  permit  no  female  seals  to  be  killed;  while  75  per 
centum  of  those  killed  by  the  pelagic  hunter  are  fenmles  heavy  with 
young  and  almost  helpless. 

In  that  condition,  as  well  as  in  accordance  with  a  law  of  their  nature, 
which  isan  ini))()rtantfactin  connection  with  theirdomesticity,  tlicfemale 
fur-seal  require  a  great  deal  of  sleep.  When  asleep,  they  turn  upon 
their  backs,  fold  their  riii»persovcr  tlieix  breasts,  and  curving  their  hind 
flippers  upwards,  they  form  of  their  bodies  a  sort  of  boat,  the  spinal 
column  representing  the  keel.  They  can  only  breathe  the  upi)er  air; 
they  can  not,  like  a  fish,  extract  air  from  the  water.  While  sleeping 
their  noses  are  ab(»ve  the  water.  After  inhaling  the  iiir  the  nostrils 
close  firmly  together,  and  the  air,  heated  by  their  bodies,  expslnds  and 
buoys  them  up.  They  .«el(h»m  breathe  oftener  than  once  iii  fifteen  min- 
utes, and,  wIh^u  diving,  they  need  not  return  to  the  surfa<'e  for  air 
oftener  than  every  thirty  minutes.  We  know  nothing  of  their  habits 
at  night  while  in  the  ocean.  On  lainl  they  are  so  boisterous  at  night 
with  their  bowlings  that  sleep  would  seem  to  be  impossible,  except 


108 


II 


from  hIk^ui-  4>,xliimstioii.  They  Iiavo  not  a  keen  vision,  and  t'le  Hunli^^ht 
i^4  painful  to  them,  so  tliat  they  leave  the  land  and  go  U*  sea  on  days  that 
are  bright.  This  causes  them  to  seek  a  summer  home  in  a  place  where 
fogs  and  rains  ])revaii.  Yet  they  nnist  have  warmth.  X<iturejiiis  amply 
provided  for  this  necessity  by  givinjjj  them  a  doultle  coating  of  thick, 
strong  hair,  ai;  1  of  the  thickest  and  Hnest  fur  that  was  ever  bestowed 
upon  any  species  of  aninuils.  It  is  as  impervious  to  water  :is  the  down 
of  an  eider  duck.  The  pups  are  born  without  this  fur,  and  hence  their 
aversion  to  t<wimmitig  until  it  has  grown  out;  and  this  detains  them  on 
land  for  four  months,  at  leirst,  during  which  period  they  can  subsist 
only  on  the  ndlk  of  the  cow  seals.  While  their  vision  is  not  keen,  their 
auditory  organs  ami  sense  of  smell  are  exceedingly  acute.  They  are 
attra<'ted  by  sounds  as  few  other  animals  are.  In  this  faculty  they 
make  a  close  approach  to  the  endowments  of  mankind.  Sir  John 
Thompson  is  anmsed  at  an  account,  read  by  Mr.  .lustice  ilarlan,  of  tho 
seals  being  attracted  in  great  iiund)ers  near  t«)  the  shore  at  Hoy  by  tho 
ringing  of  a  church  bell.  In  his  iiicreduhms  sport  over  this  incident 
Sir  John  forgot  that  it  is  the  personal  observation  of  Mr.  Low  one  ot 
the  greatest  luituralists  who  ever  lived,  the  friend  and  com]>anion  of 
Cuvier,  ami  is  moie  than  confirmed  by  M.  I'eron,  whom  France  has 
honored  in  the  m<(st  conspicuous  way.  His  abilities  as  a  naturalist, 
acfpuiinted  intimately  with  seal  life,  are  as  far  in  advance  of  those  of 
Prof.  Elliott,  from  whom  Lord  ILinnen  iiuotes  with  much  8atisfa(;tion, 
as  Napoleon  was  in  advance  of  the  Sioux  chieftain.  Sitting  Hull,  as  a 
military  genius. 

1  will  presently  (juote  something  further  about  fur-seuls  from  Mr. 
Peron. 

I  know  Mr.  Elliott,  whom  the  British  (rovernment  has  dubbed  "pro- 
fessor." I  have  respect  for  his  diaracter  and  spriglitliness.  lie  is  a 
painter  in  water  colors  of  no  mean  pretensions,  but  his  use  of  color 
does  not  stoj)  with  his  canvas.  It  enters  into  all  he  says,  and  makes 
him  too  vivid  an  enthusiast  for  a  safe  reliance  on  questions  of  measure- 
ments, statistics,  and  cold  facts,  I\'ir.  Elliott  was  (uit  on  the  l^ribilof 
Islands  on  the  10th  of  July,  18!M»,  taking  Held  notes,  which,  to  be  of  any 
value,  should  be  free  from  all  romantic  conjecture.  The  following  is 
one  of  his  highly  colored  extracts  taken  from  his  report  of  that  day: 

In  company  with  Mr.  (Jotf  and  Dr.  Lntz,  I  made  my  ])lotting  of  the 
breeding  seals  as  they  lay  ou  the  Reef  and  Garbotch  to-day. 

Here  at  the  very  heiglit  of  tho  breeding  season,  when  the  masses 


:?! 


v 


7i 


109 

Tvero  most  ("ompact  nnd  unifortn  in  tUcir  distribution  in  18C2-'74, 1  find 
the  iininuils  an  tlicy  lay  to-day,  scattered  over  twice  and  tlirire  as  nnieli 
groun<l  as  a  rule,  as  the  same  number  would  occupy  in  1><7L' — scattered 
because  tlie  virile  bulls  are  so  tew  in  number  and  the  service  winch 
they  rtinder  so  delayed  or  impotent.  In  other  words  the  cows  are  rest- 
less; not  ieinj;  served  when  in  heat,  they  seek  other  bulls  by  haidiu}; 
out  in  ^reeu  Ja^^rcd  points  of  massing  (us  is  shown  by  the  chart),  up 
t'nmi  their  landing  belts. 

This  unnatural  action  of  the  cows,  or  rather  unw(Mited  movement, 
has  caused  the  pups  a!rea<ly  to  form  small  pods  everywhere,  even  where 
the  cows  are  most  abundant,  which  shadows  to  me  the  truth  of  the 
fact  that  in  live  days  or  a  week  from  date,  the  scattering  com]iletely  of 
the  rookerv  organization  will  be  thoroughly  dtine;  it  did  not  take  place 
until  the  20tli-2r»th  July,  1.S72. 

In  1S72,  these  cows  were  )»r(tm|)tly  n>et  with  the  service  which  they 
craved  on  the  rookery  ground.  The  scattering  of  these  old  bulls  to  day 
over  so  large  an  area,  is  due  to  extreme  f(M'bleness  and  combined  in 
many  cases  to  a  recollection  of  no  distai.t  day  when  they  had  previ- 
ously hauled  thus  far  out  o»  this  very  ground  surrounded  by  bareness, 
though  ail  is  vacant  and  semi  grass  grown  under  and  around  them  now. 

The  fur-seals,  so  well  proviiled  against  cold,  are  yet  so  se.isitive  to 
its  effects  that  they  go  south  at  the  approach  of  winter  and  !<eek  their 
food  in  the  great  river  of  warm  waters  tliat  comes  from  the  tropical 
coast  of  Asia  and  pours  its  Hood  across  the  Pacific  Ocean.  It  bears 
enormous  treasures  of  fish  food,  and  swarms  with  schools  of  herring, 
salmon,  and  scpiid.  The  migratory  fishes,  that  naturally  feed  against 
the  current,  pursue  the  track  of  this  warm  river  in  the  ocean  and 
ascend  it.  This  leads  them  to  the  northern  const  of  the  United  States, 
and  thence  around  the  great  curve  which  this  river  has  formed  on  the 
coast,  past  British  ('ohunbia,  to  the  south  of  the  Alaskan  peninsula. 
The  fur-seals,  finding  warmth  and  food  in  this  ocean  curreTit,  enter  it 
when  they  quit  the  breeding  islands  and  Bering  Sea,  in  Novend)er,  and 
must  stay  in  the  broad  expanse  of  warm  waters,  where  it  ceases  to 
flow,  during  a  considerable  part  of  the  winter.  Then^  they  reuniin  in 
search  of  the  herring  and  other  vast  schools  of  migratory  fishes  that 
are  surface  swimmers  and  feeders,  and  they  follow  them  on  their  way 
to  the  spawning  grounds,  as  the  seals  return  to  their  summer  abode  on 
the  islands  to  the  north  of  the  Aleutian  peninsula,  where  the  Arctic 
current  and  the  Asiatic  river  meet. 

Around  the  great  curve  I  have  mentioned,  this  ocean  current  sets  in 
close  to  the  shore,  flowing  southward,  and  its  warm  wat<'rs  make  the 
winter  climate  in  those  high  latitudes  and  altitudes  nearly  as  soft  and 
genial  as  that  of  Ireland,  and  for  tire  same  reason.  The  seals  are  thus 
drawn  into  numerous  large  assemblages  or  schools  near  to  the  western 


^^^^ 


no 

coa«t  of  North  America,  anil  are  in  eaHy  reach  of  the  "iiidastry"  of 
pclagu;  aealerH. 

Tliey  muHt  travel  a  great  deal  in  the  niglit  time.  In  this  they  are 
guided  and  i)rotO(;ted  by  their  sense  of  liearing  and  smell,  and,  like 
tlie  cat,  tliey  are  |>r()vided  with  several  rows  of  whiskers  that  are  very 
sensitive  and  that  ailnionish  them  of  danger  in  places  where  they  can 
not  see  their  way. 

The  gravid  femides  must  necessarily  spend  a  large  part  of  each  <lay 
in  seeking  food,  and'  do  not  travel  so  fast  as  the  male  seals.  Tlieir  exer- 
tiojis  are  necessarily  very  taxing  to  their  strength  and  recjuire  them 
to  sleep  fre(inently  during  the  day. 

I  have  made  this  statement  of  facts  and  conclusions,  as  I  draw  tlieni 
from  the  evidence,  to  support  the  further  conclusion  of  fact,  which,  I 
think,  is  unavoidable,  that  the  war  upon  the  gi;  vid  female  seals  is 
like  a  war  upon  the  women  and  children  of  a  nation.,  which  all,  excejit 
the  most  depraved  of  savage  nations,  abhor.  True,  these  are  beasts; 
but  they  are  harndess,  docile,  useful  beasts,  and  very  helpless,  and 
when  t'ley  are  denied  any  more  protection  by  the  supposed  law  of 
nations  against  the  mercenary  fero(;ity  of  the  pelagic  sealer  than  is 
given  to  tigers  or  serpents^  while  I"  am  empowered  to  vote  in  this  Tri- 
bunal, which  is  now  their  only  protector,  I-  must  vote  at  least  to 
disarm  the  pelagic  sealer  of  his  double-barreled  sliotgun,  or  else  to 
conttne  his  warfare  to  an  area  of  waters  and  to  a  close  season  where 
his  powers  of  destruction  will  not  exterminate  the  race. 

If  I  could  iind  no  better  reason  for  restraining  the  pelagic  hunters 
from  the  use  of  double-barreled  shotgnns  in  their  "sportsmanlike" 
business  of  killing  gravid  females  and  nursing  mother  seals  in  order  to 
earn  $!(»  a  piece  from  each  pelt,  I  would  Join  my  voice  with  that  of  every 
respectable  legislature  in  the  world  in  their  careful  and  highly  i)enal 
enactments  for  the  prevention  of  cruelty  to  animals,  and  would  at  least 
l)ut  the  female  seals  under  the  protection  of  proper  regulations  to  be 
awarded  by  tliis  Tribunal. 

On  this  point  I  will  quote  from  The  Naturalist's  Library  (]>.  81),  which 
thus  describes  the  cruelties  inflicted  upon  these  valuable,  docile,  and 
harmless  animals: 

Before  proceeding  to  make  the  few  remarks  which  our  limits  allow 
on  the  valuable  products  derived  from  these  aniinals,  we  would  say  a 
word  or  two  upon  their  capture.  They  are  exceedingly  tenacious  of  life, 
and  many  cruelties  have  been  perpetrated  upon  them,  which  most  who 
have  witnessed  de<Oare  to  be  too  horrible  for  description,  and  over 
which  we  willingly  <lraw  a  veil.    If  life  is  to  be  sacrificed,  there  is  a 


^ 


.. 


4 


111 

riglio  way  of  takiii);  it  an  well  as  awronKi  antl  ^ve  insiHt  tliat  tlie  former 
Khonld  be  followed  and  tlie  latter  avoided.  Itcfore,  however,  enteriii); 
upon  thiH  topic,  we  talce  leave  to  remark  that  it  is  impossible  to  inves- 
tigate, as  we  have  done,  the  natural  history  of  these  animals  without 
diseovcring  how  much  their  capture  has  been  made  a  nuitter  of  mere 
arauaemenUaud,  as  it  is  fandliarly  but  emphatically  called,  of  Mport. 
We  venture  to  denounee  all  such  sjtorts  as  both  indefensible  an<l  wr<ni(j^. 
Animals  have  been  given  to  provide  for  the  necessities  and  comforts  of 
man,  but  not  that  he  may  gratify  himself  with  their  dying  agonies;  and 
he  is  wholly  inexcusable  if  even  here  he  breaks  the  goir  n  rule  of  doing 
as  he  would  be  done  by.  Sporting  with  the  feelings,  and  pains  and  lives 
of  thes«i  creatiu-es  has  a  strong  tendency  to  lead  to  «'ruelty  and  wicked- 
ness; and,  theretbre,.this  inherent  tendency  should  be  checked  In  the 
bud  and  invariably  opposed.  When  we  witness,  says  I'eron,  a  tluuight- 
less  saih)r  hastening  for  his  anuisement,  club  in  hand,  into  the  midst 
of  a  great  herd  and  surnmiuling  himself  with  their  dead  Ixtdies,  we 
cannot  but  sigh  over  this  improviilence  and  cruelty  which  lays  low  so 
nuuiy  peaceful,  gentle,  and  unhap])y  beings. 

While  1  have  the  b(M)kiu  liMud,  I  will  read  other  extracts  in  relation 
to  the  docility  of  the  seals,  on  pages  7.'l  to  77 : 

At  a  particular  season  of  the  year,  every  nmle,  intlamed  with  lust, 
and  jealous  almost  at  its  shadow,  lords  it  over  his  numerous  harem 
with  even  more  than  eastern  despotism,  and  thereby  throws  the  whole 
ctunmunity  into  a  state  of  the  highest  excitement  and  agitation.  Dur- 
ing this  period,  whi(;h  continues  for  months,  many  a  jealous  Hashaw, 
as  these  animals  have  not  inaptly  lieen  designaU'd,  engages  in  fearful 
strife  with  a  rival;  the  contest  is  often  long  and  obstinate,  as  well  as  most 
sanguinary  and  fatal.  Nor  does  it  end  with  these  doughty  chami)ions. 
Other  male^;  soon  imagine  that  their  interests  are  involved,  or  their 
rights  invaded,  and  the  strife  spreads  from  family  to  family,  till  at 
length  the  whole  community  is  involved  in  one  general  melee  of  i)as- 
sion  and  rage,  of  tierce  cries  and  groans,  of  blood  and  death;  and, 
after  all,  short  is  the  triumph  of  the  conqueror,  and  deep  and  poignant 
the  chagrin  and  malice  of  the  vanquished. 

Originally,  and  therefore  we  are  disposed  to  hold  that  naturally, 
these  amphibia,  far  from  having  a  dread,  have  rather  a  reposing  con- 
fidence in  man.  When  a  young  one  by  an  accident  is  separated  from 
its  parents  and  comes  in  contact  with  man,  instead  of  shunning  it 
courts  its  company.  It  will  follow  him,  and  if  the  tinger  be  held  out 
will  suck  it  like  many  domestic  animals.  Thnuigh  the  kindness  of 
Prof.  Trail  we  can  illustrate  this  trait  in  their  mental  constitution  by 
an  interesting  i'.u'ident  of  which  he  was  a  witness,  and  which,  with 
several  other  anecdotes,  we  can,  through  his  polite  attention,  re'- id  in 
his  own  words:  "A  little  islet  in  Orkney,  called  the  Holm  of  Papa 
Westray,  had  long  been  a  favorite  haunt  of  numerons  seals,  Miiich  had 
become  more  than  usually  tame  from  the  care  of  the  proprietor  of  the 
adjoining  island  to  i)revent  their  being  molested.  On  visiting  that 
gentleman  in  1833  I  found  the  seals  exhibited  their  wonted  contidence 
in  those  who  approached  their  ])rotected  haunt.  Several  of  them  swam 
along  the  shoi'e  as  a  party  of  six  or  eight  persons  walked  along  the 
beach,  and  did  not  in  general  keep  farther  from  us  than  3(N)r  40  yards. 
When  we  turned  so  did  they,  and  when  we  rei^ntered  our  boat  they 
followed  it  in  the  narrow  channel  that  divides  Holm  from  the  island  of 
Papa.    Seals  are  said  to  relish  music,  and  a  seal  hunter  once  informed 


112 


inc  that  tlie  s«>iiii<1  of  a  lliito  will  alliiro  them  Ut  a  boat;  but  in  tlie 
above  iiistaiif«!  it  was  iiieruly  tll^  coiiseqiu'iue  of  no  f>:un  bein}{  ever 
lifted  a.,'iiinst  tliein  in  that  inlet  whieh  has  won  their  eontldent'e  in 
man."  Nor  is  this  niaiaeteristii-  less  strikin^fly  exeniplitled  by  an 
observiition  made  by  Mi'.  Dnnbar,  tlie  |ireseiit  iiu-ninbent  of  the  parish 
of  Applej^arth,  diiiiiiff  his  resideiK^e  at  a  former  period  in  one  (»f  the 
Hebrides.  In  a  letter  to  iMr.  Li/ars,  wliieh  appeared  in  thi^  last  volume 
of  the  Natiiralisis'  Library,  we  liiid  the  Ibllowin^  statement:  ''While 
my  pu|iils  and  I  wei'(>  bathing;,  which  we  often  did,  in  the  bo8om  of  a 
beautiful  bay  in  the  island  named,  from  the  eirciimstaiiec  of  its  being 
n  favorite,  haunt  of  the  animal,  S«'al  Hay,  numbers  of  these  ereatureH 
invariably  made  their  ai»pearaiice.  espeeially  if  the  weather  was  calm 
and  sunny  and  the  sea  smooth,  (u-owdin;;  aroiini^us  at  the  distiin('<>  of 
a  few  yards,  and  looking;;  as  if  they  had  some  kind  of  notion  that  we 
were  of  the  same  ;feims  with  themselves..  The  {gambols  in  the  water 
of  my  ]dayful  eumpaiiioiis  and  their  noise  and  merriment  seemed,  to  our 
imajifiiiation,  to  «>xcite  them  and  to  make  them  eoiirse  round  uh  with 
greater  rajiidity  and  animation.  At  the  same  time  the  slightest  attempt 
on  our  part  to  act  on  the  ollensive,  by  throwing  at  them  a  ston«i  or 
shell,  was  the  signal  for  their  instantaneous  disappearance,  each  as  it 
vanished  leaving  *'■<)  surface  of  the  water  beautifully  figured  with  n 
wavy  succession  of  concentric  circles." 

•       '        •  •  •  •  «  • 

In  the  previous  paragraph  allusion  is  casually  niat^Ie  to  the  notion 
that  these  aninuils  are  not  indilferent  to  the  charms  of  music,  whilst 
we  believe  it  may  be  safely  atlirmed  that  this  assertion  is  more  frecpieutly 
made  than  credited.  The  stateuK^iif,  however,  appears  to  be  perfectly 
correct;  and  the  following  quotations,  the  former  from  the  celebrated 
Orkney  naturlist,  Law,  and  the  latter  from  Mr.  Dunbar  Just  quoted, 
are  sullieieiit  to  banish  all  skei)ticism  on  the  point.  "If  people  are 
l)assiiig  in  boats  the  seals  often  come  close  up  to  them  and  stare  at 
them,  following  for  a  hnig  time  together;  if  people  are  speaking  loud 
they  seem  to  wonder  what  may  be  the  matter.  The  church  of  Hoy  is 
situated  near  a  small  sandy  bay  much  frequented  by  these  creatures, 
and  I  observed  when  the  bell  rang  tor  divine  service  all  the  seals 
within  hearing  swam  directly  for  shore,  and  kept  looking  about  them, 
as  if  surprised  rather  than  frightened,  and  in  tliis  manner  continued 
to  wonder  as  long  as  the  bell  rang." 

And  again  Mr.  Lizars's  conesjiondeiit:  "The  fondness  of  these  ani- 
mals for  mut^ical  sounds  is  a  ciirioiis  ^)ecnliarity  in  their  nature,  and 
has  been  to  me  often  a  subje(!t  of  interest  and  amusement.  During  a 
residence  of  some  years  in  one  of  the  Hebrides  1  had  many  opportu- 
nitic^s  of  witnessing  this  peculiarity,  and  in  fact  could  call  forth  its 
manifestation  at  ideasure.  In  walking  along  the  shove  in  the  calm  of 
a  summer  afternoon  a  few  notes  of  my  tlute  would  bring  half  a  score 
of  them  within  30  or  40  yards  of  me;  and  there  they  would  swim  about, 
with  their  heads  above  water,  like  so  many  black  dogs,  evidently  de- 
lighted with  the  sounds.  For  half  an  hour,  or,  indeed,  for  any  length 
of  time  I  chose,  1  could  tix  them  on  the  spot;  and  when  I  moved  along 
the  water  edge  they  would  follow  me  with  eagerness,  like  the  dol- 
phins who,  it  is  said,  attended  Arion,  as  if  anxious  to  piolong  the 
enjoyment.  1  have  frequently  witnessed  the  same  effect  when  out  on 
a  iioat  excuirsion.  The  sound  of  a  tlute  or  of  a  common  tife  blown  by 
one  of  the  boatmen  was  no  sooner  heard  than  half  a  dozen  would  start 
up  within  a  few  yards,  wheeling  round  us  as  long  as  the  music  played, 
and  disappearing  one  after  another  when  it  ceased." 


1' 


. 


". 


118 

Again  I  rend  (torn  the  same  volume  to  prove  wliat  \  have  said  about 
the  geiiHe  ut  hearing,  toucli,  and  Hiiiell  tliat  seals  pohhchh  (pages  (>r>  and 
m) : 

The  truth  is,  the  eye  of  the  Amphibia  is  a  perfect  study  and  would 
well  repay  a  length"iied  (l('s<-ription.  It  is  very  largt!  and  <|uite  spher- 
ical; sclcrotie  w  outer  membrane  is  very  )ieculiar,  inasmuch  as  it  has  a 
soft  and  tliin  /one  around  its  middle,  thickly  (>overed  with  muscbs, 
whilst  both  before  and  behind  it  is  thick  and  almost  cartiltiginous. 
The  precise  use  of  this  structure  lias  not  yet  been  discovered,  though 
Rlumenbach  has  thrown  out  the  idea  that  it  may  enable  the  seal  to  see 
both  in  air  and  water.  Rosenthal  so  far  ttontirnis  this  opinion  by  hav- 
ing observed  that  tiffc  mechanism  is  peculiar  to  those  animals  whi<'h 
live  in  a  dense  medium,  such  as  water;  that  the  remarkable  thickness 
of  the  coat  is  found  in  thos(;  animiil."'  in  which  the  orbit  is  not  wholly 
osseous,  and  that  some  tishes  have  the  sclerotic^  nearly  cartilaginous. 
With  regard  to  the  ear,  it  ought  not  lo  be  forgotten  that  tlslics,  with 
no  external  ear  or  aperture,  have  in  their  native  element  an  acuteness 
of  hearing  which,  according  to  some  respectable  authorities,  far  exceeds 
our  own,  and  Kosenthal  states  that  the  audit(M\v  nerve  of  the  seal  is 
very  large.  Kespecting  the  sense  of  touch,  wo  shall  here  (piote  M.  F. 
Cuvier,  who  well  remarks  :  "The  whiskers  are  very  sensible  portions 
of  the  sense  of  toiudi.  Those  hairs  placed  on  each  side  of  the  month 
and  at  the  corner  ()f  olie  eye  communicate  with  nerves  which  are 
remarkable  for  their  si/e,  and  to  which,  as  I  liave  often  cfmvinced  myself, 
the  slightest  impression  communicates  an  immediate  sensation."  80 
it  is,  we  believe,  with  the  other  senses,  which  we  consider  wonderfully 
adapted  to  both  elements.  Thus  liutfon  remarks  of  the  monk  seal  On 
land:  "It  has  a  very  acute  he  '  ig,  since  even  at  a  distance  it  never 
tailed  to  obey  or  respond  toits  master's  voice;"  and  tlinsCapt.  Scoresby: 
"Seals  appear  to  hear  well  under  the  water.  Music  or  particularly  a 
person  whistling  draws  them  to  the  surface  and  induces  them  to 
stretch  out  their  necks  to  the  xitmost  extent,  so  as  to  prove  a  snare  by 
bringing  them  within  the  reach  of  tlie  shooter;"  and  Weddell:  "Their 
sense  of  hearing  is  acute,  and  also  their  sense  of  smell."  It  is  on 
account  of  this  last  sense  that  the  Grecnlanders  always  endeavor  to 
approach  them  against  the  wind.  And  were  we  to  judge  of  their  taste 
by  the  keenness  with  which  they  relish  their  food — few  animals  possess 
it  in  eijual  perfection.  The  greatest  gourmand's  teeth  do  not  water  at 
the  anticipation  of  the  ri<'lie8t  feast  as  do  theirs  in  expectanc-y  of  their 
eomuKm  food.  "A  copious  saliva,"  says  M.  F.  Cuvier,  "tills  and  flows 
from  their  mouth  during  deglutition,  and  not  less  so  the  moment  the 
seal  perceives  its  prey." 

As  to  their  breathing,  I  will  read  from  pages  56,  57,  and  58,  where 
the  following  is  stated: 

Having  thus  noticed  that  the  external  structure  of  these  Amphibia  is 
admirably  adapted  for  their  watery  element,  and  yet  made  wonderfully 
conformable  to  tluMr  re<piirements  on  land,  we  i)roceed  to  remark  that 
their  vital  functions  also  are  strikingly  titted  for  their  peculiar  exigen- 
cies. Their  respiration,  as  might  readily  be  inferred,  differs  consider- 
ably from  Avhat  is  observed  in  most  other  animals.  Even  the  air  pas- 
sages undergo  a  change  which  ought  not  to  be  overlooked.  Wo  refer 
particularly  to  the  nostrils,  whose  state,  unlike  that  of  other  qnad- 
11495  M 8 


'Vl-^I»WWtrW«(MWl****'W(»W."- 


114 


riipcdH,  IK  tliiit  of  luMiif;  liiihitually  closed,  instead  of  \w'\\\n  iiiiit'oriiily 
oputi.  TtiiH  was  tii'Ht  iiotitHMl,  w<>  i)oli«n'e,  in  a  walriiH  doinoHticatud  in 
Kn(;land,  of  which,  as  will  appear  in  oni-  account  of  that  animal,  it  was 
Haid:  '^It  can  open  and  Hhut  its  nostrils  at  plcasiirc."  The  Count 
BnH'on  again  pointed  out  the  peculiarity  in  a  tame  seal  which  ho 
examined :  "  In  the  intervals  of  hreathin;;,  the  nostrils  were  accurately 
closed,  and,  on  the  act  of  inspiration  beiuff  completed,  they  were  shut 
as  before."  M.  F.  Cuvier,  at  a  later  period,  made  a  similar  observation, 
so  that  we  a])prehi-iid  wo  may  safely  allirm  that  this  peculiarity  exists 
in  the  air  passajfes  as  their  (U'dinary  c(uulition.  This  state  of  parts  of 
course  sup])1ies  ready  nu>ans  of  Judging  of  the  frequency  of  resi)irati(Ui, 
and  here,  too,  there  appears  to  be  a  marked  diflerence,  even  on  land, 
from  what  obtains  amoiiju'  other  animals.  Thus  Jluf^bn,  in  the  instance 
already  alluded  to,  remarks:  "The  |)eri(Ml  between  its  several  inspira- 
tions was  very  lonj;;  the  creature  opem'd  its  nostrils  to  nuike  a  stroufj 
expiration,  wlii(!h  wat;  immediately  followed  by  an  insiiiration,  after 
Avhich  it  closed  them,  often  allowiii<;  them  n)innte.»  to  intervene  without 
takiufr  another  breath."  Tn  connection  with  this  iteculiarity,  M.  F. 
( 'uvier  makes  an  additional  and  im])ortant  rem;>rk :  "  Notwithstandin;; 
tiie  slow  and  irrejjular  breathiuff  of  these  animals,  the  reffular  supply 
of  air  to  the  lun{;s  is  in  uo  de<;ree  diminished,  if  we  nuiy  judt^e  from 
the  very  free  m<»tion  of  the  ribs,  and  the  great  <|iuinl:ty  of  air  expelled 
at  each  expiration.  In  truth,  the  quantity  of  air  taken  in  makes  up 
for  the  small  number  of  the  respiratioiiH;  for  few  of  the  Mammalia 
have  appeared  to  me  to  have  so  high  a  natural  temi)erature  as  the  seals. 
But,  however  great  the  i)eculiarity  as  exhibited  on  land  may  be,  it  is 
tritling  when  compared  tq  its  singularity  in  water,  where  it  is  not 
unciunmon  Ibr  these  animals  to  renuiin  for  a  (piarter  of  an  hour  at  a 
tinui  under  the  surfac-e  (the  usual  i)eriod  even  for  whales);  and  we  are 
not  i)repared  to  state  what  the  extreme  limit  may  be.  Thus,  Crantz 
states  that  when  harpooned  they  must  come  upin  aboutaqinirterof  an 
hour  to  take  breath;  and  Mr.  Fdmonst<Mi  informs  us  that  he  once  saw 
one  of  the  bearded  seals  entangled  in  a.  net,  which  struggled  with 
ama/.iiig  force  for  nuu-e  than  twenty-live  minutes  without  once  inspiring, 
and  yet  was  brought  to  the  surfac^e  alive.  An  observation  of  M.  F. 
Cuvier  is  still  more  renutrkable.  lie  states,  concerning  those  which 
were  preserved  in  tlie  menagerie  at  Paris,  that  he  has  seen  them  while 
asleep  keep  the:;  heads  under  water  consecutively  and  consequently 
without  breathing  for  an  hour  at  a  time.  This  is  an  extraordinary 
phenon.v-uon,  even  allowing  that  the  animal  was  in  that  somewhat 
lethargic  condition  to  which  we  sha    ere  long  allude. 

As  to  their  destruction,  by  unrestricted  hunting,  the  following  pages 
may  be  referred  to:  pp.  93,  95,  90,  and  97,  where  it  is  said: 

The  time  was  when  cargoes  of  those  skins  yielded  $5  or  $0  apiece  in 
China,  '<nd  the  present  price  in  the  Fnglish  market  averages  from  30 
to  50  sliillings  per  skin.  The  number  of  skins  brought  off  from  (Jeorgia 
can  not  be  estimated  at  fewer  than  l,'JOO,OflO;  the  Island  of  Desolation 
has  been  e(iually  productive,  and  in  addition  to  the  vast  sums  of  money 
whi<;h  these  creatures  have  yielded  it  is  calculated  that  several  thousand 
tons  of  sliipping  have  annually  been  employed  in  the  traffic. 

*  *  *  These  valuable  creatures  liave  often  been  found  frequent- 
ing some  sterile  islands  in  innumerable  multitudes.  By  way  of  illus- 
tration, we  shall  refer  only  to  the  fur-seal,  as  occurring  in  South  Shet- 
land.   On  this  barren  sjwt  their  numbers  were  such  that  it  has  been 


115 


i 


OHtimaforl  Mint  it  could  littvo  vniitiiiiH>(l  penntiiiuntly  to  rnriiiHli  n  rutiini 
of  UN),(KM)  tnrs  n  year;  wliicli,  to  Hiiy  notliin^  of  tlii>  itiihlic  lionotlt,  would 
have  yielded  Hiiiiuidly  from  tliJH  H|M»t  hIoiio  a  very  li..iidHomeHiiin  to  tlie 
adveiitiirertT.  lint  what  do  tiiesu  men  doT  In  two  short  vearH,  IHiil- 
"22,  HO  jjreat  \h  the  ruHli  that  they  destroy  .TJO.tMMI.  They  killed  all  and 
spared  none.  The  moment  an  animal  landed,  thonj^h  hi;;  with  yoiin^, 
it  was  destroy«Ml.  Those  on  shore  were  likewise  immediately  d«^s|»at(!lnHl, 
though  .the  cubs  were  but  a  day  old.  These  of  ecmrse  all  died,  their 
number,  at  the  lowest  calculation,  exceedinfj  1(K),«VM>.  No  wonder,  then, 
that  at  the  end  of  the  second  year,  the  animals  in  this  locality  were 
nearly  extinct.  Ho  it  is,  we  add,  in  other  localiticB,  and  so  with  other 
seals;  so  with  the  oil  seals,  :ind  ho  witii  the  whale  itself,  every  addition 
only  making'  bad  worse.  ^Vnd  all  this  might  easily  be  ]>revented  by  a 
little  less  barbarous  and  revolting  cruelty,  and  a  little  more  enlightened 
selllHlinesH.  FishermiMi  arc  by  law  restrained  as  to  the  size  of  the 
meshes  of  their  ne^  ir>  talking  many  of  our  more  valuable  (Ish;  and  in 
the  Island  of  Lobos,  lU  the  Uiver  Plata,  where,  as  wo  have  seen,  there 
are  <|uantiti<>s  of  seals,  their  externunation  is  ju'cvented  by  the  yi»vernor 
of  M(»ntevide«>,  who  farms  out  the  trade  under  the  restri<-ti(m  thai  the 
hunters  shall  not  take  them  but  at  stated  periods,  ages,  etc.  •  •  • 
With  regard  to  the  seal  tisliery  of  the  south  the  English  ami  Ameri- 
cans have  exclusively  divided  it  between  them,  and  with  very  great 
prodts.  It  has  lately  been  stated  that  they  together  employ  uot  fewer 
than  sixty  vessels  in  the  trade  of  from  '2'tO  to  MH)  Ions  burden.  These 
vessels  are  strongly  built  and  have  each  six  boats,  like  those  of  the 
whalers,  together  with  a  snndl  vessel  of  40  tons  which  is  i)ut  in  requi- 
sition \v\um  they  reach  the  scene  of  their  operations.  The  crew  con- 
sists of  about  twenty-four  hands ;  their  object  freijuently  being  to  select 
a  certain  fixed  locality  from  whiiOi  they  make  their  varicms  ImftneH. 
Tims  it  is  very  (common  for  the  ship  to  be  moored  in  some  setnire  bay 
and  to  be  partially  unrigged,  whilst,  at  tht^  same  time,  the  furnaces, 
etc.,  required  for  making  the  oil  are  placed  on  shore.  The  little  <'ut- 
ter  is  then  rigged  and  maniu'd  with  about  half  the  crew,  who  sail 
about  the  neighboring  ishmds,  and  send  a  few  hands  on  shore  when 
they  see  seals,  or  where  they  wish  to  watch  for  them.  This  vessel  can 
hold  abimt  two  hundred  seals  rudely  cut  up,  which  will  yield  about 
100  barrels  of  oil.  This  is  transported  to  the  headquarters  and  melted. 
The  campaign  fretpiently  lasts  for  three  years,  and  in  the  midst  of 
unheard  of  privations  and  dangers.  Some  of  the  crew  are  sometimes 
left  on  distant  barren  spots,  and  the  others  being  driven  off  by  storjiis, 
they  are  left  to  perish  or  drag  out  for  years  a  most  i)r<'carious  und 
wretched  existence. 

This  evidence,  fiom  the*  highest  English  and  French  authorities,  was 
stated  to  the  scientific  world  more  than  fifty  years  ago,  as  a  plea  for 
"  the  preservation  of  these  valuable  and  docile  animals.  If  we  cahailato 
the  values  they  would  have  added  to  comnjcrce,  had  Great  Britain 
and  the  United  Stat«s  then  agreed,  as  they  do  now,  to  adopt  regida- 
tions  for  their  protection,  we  must  reproach  ourselves  if  this  Tribunal 
is  not  now  equal  to  this  important  duty  and  if  the  regulations  we  adopt 
are  not  effectual  to  stop  this  great  wrong. 


M 


(  ' 


116 

The  following  pafijes,  275,  276,  and  277,  contain  a  description  of  fur- 
seals  in  the  Antarctic,  taken  from  the  writinjfs  of  Capt.  Weddell : 

Nothing  rewarding  the  fur  seal  is  more  astonishing  than  the  dispro- 
portion in  thii  size  of  tlie  unile  and  female.  A  large  grown  male,  from 
the  tip  of  the  nose  to  the  extremity  of  the  tail,  is  (>  feet  9  inches,  wliile 
the  female  is  not  more  than  3A  feet.  This  class  of  the  males,  however, 
is  not  the  most  numerous,  but  being  physically  the  most  powerful  they 
keep  in  their  possession  all  the  females  to  tlie  exclusion  of  the  younger 
branches;  hence,  at  the  time  of  parturition,  the  males  attending  the 
females  may  be  computed  as  one  to  twenty,  which  shows  this  to  be, 
perhaps,  the  most  poly^ramous  of  large  animals. 

They  are  in  their  nu^^re  comi)lctely  gregarious;  but  they  flock 
together  and  assemble  on  the  coast  at  different  periods  and  in  dis- 
tinct classes.  The  males  of  the  largest  size  go  on  shore  about  the 
middle  of  November  to  Avait  the  arrival  of  tiie  females,  who  of  necessity 
must  soon  follow  f(U"  the  purjjose  of  bringing  forth  their  young.  These 
in  the  early  part  of  December  begin  to  land,  and  they  are  no  sooner  o'.'t 
of  the  water  than  they  are  taken  possession  of  by  the  males,  who  have 
many  serious  battles  with  each  other  in  procuring  their  respective 
seraglios  and  by  a  peculiar  instin<!t  they  carefully  protect  the  females 
under  their  charge  during  the  whole  period  of  gestation.  By  the  end  of 
December  all  the  tcmale  seals  have  accouiplish  the  purpose  of  their  land- 
ing. The  time  of  gestation  n)ay  be  considered  nearly  twelve  months,  and 
thi^y  seldom  have  more  than  one  at  a  time,  which  they  suckle  and  rear 
ap])arently  with  great  afiection.  By  the  middle  of  February  the  young- 
are  able  to  take  to  the  water,  and  atter  being  taught  to  swim  by 
the  mother  they  abandon  them  on  the  shore,  where  they  remain  till  their 
coats  of  fur  and  liair  are  completed.  During  tlie  latter  end  of  February 
what  are  called  the  dog  seals  goon  shore;  these  are  the  young  seals  of 
the  two  preceding  years,  and  such  males  as,  from  the  want  of  age  and 
strength,  are  not  allowed  to  attend  the  i)regnant  Cemales;  These  young 
seals  come  on  shore  for  the  i)urj)ose  of  renewing  their  annnal  coats, 
which  being  done  by  the  end  of  Ajtril  they  take  the  water,  and  sc.ircely 
any  are  seen  on  shore  again  till  the  end  of  June,  when  some  koung 
males  come  uj)  and  go  off  alternately.  They  continue  to  do  this  ^br  six 
or  seven  weeks,  and  the  shores  are  then  again  abandoned  till  the  3nd  of 
August,  when  a  herd  of  snuill  young  s'-'ls  of  both  sexes  come  on  shore 
for  about  live  or  six  weeks,  and  then  retue  to  the  water.  The  large 
male  seals  take  uj)  their  places  on  shore,  as  has  been  before  described, 
which  completes  the  intercourse  all  classes  have  with  the  shore  (luring 
the  whole  year.  The  young  are  at  first  black ;  in  a  few  weekn  tliey 
become  gray,  and  soon  after  obtain  their  coat  of  hair  and  fur. 

When  these  South  Shetland  seals  were  first  visited  they  had  !io 
apprehejision  of  danger  from  meeting  men;  in  fact,  they  would  lie  still 
while  their  neighbors  were  killed  and  skinned;  but  latterly  they  had 
acquired  habits  for  counteracting  danger  by  placing  themselves  on 
rocks,  from  which  they  could  in  a  moment  i)recipitate  themselves  into 
the  water.  The  agility  of  this  creature  is  almost  greater  than,  from  its 
appearance,  an  observer  would  anticipate.  I  have  seen  them,  indeed, 
often  escape  from  men  running  fast  in  pursuit  to  kill  them. 

These  statements,  collated  in  volume  12  of  the  Naturalist's  Library, 
which  Lord  Hannen  tells  us  is  a  standard  work,  were  written  al>out 
1820  to  1830,  and  some  of  them  earlier,  by  the  most  scientific  natural- 


■^•^p 


117 

ists  who  gathered  the  facts  from  personal  observations.  They  relate  to 
the  same  race  of  fur-seals  at  the  antipodes  that  we  are  inquiring  about 
in  this  case. 

These  able  scientists  enter  minutely  into  all  the  characteristics  of  the 
fur-seals  and  other  carnivorous  amphibia  and  give  exact  descriptions 
of  their  tactual  and  comparative  anatomy.  Their  accounts  furnish 
aficiirate  data,  in  strong  contrast  with  the  guessing  and  conjectures  of 
the  tyros,  many  of  them  without  previous  experience,  who  were  sent 
out  to  mj»ke  a  brief  and  necessarily  superiicial  study  of  the  Pribilof 
herd,  chiefly  with  a  view  to  bolster  up  special  theories  that  are  made 
the  bases  of  the  contentions  that  the  Tribunal  is  now  examining. 

Although  these  books  were  written  more  than  a  half  century  ago, 
they  are  as  accurate  as  a  photograph  as  to  the  physical  characteristics 
and  the  habits  of  the  fi  -seals  of  the  North  Pacific,  and  show  that  they 
are  exactly  now  what  the  same  species  was  one  hundred  years  ago  in 
the  South  Pacific  Ocean. 

I  rely  upon  these  exact  and  scientific  statements  of  these  learned  and 
trained  naturalists  to  clear  up  the  doubts  and  reconcile  or  remove  the 
conflicting  conjectures  of  the  numerous  witnesses  in  this  case  who  dis- 
agree chiefly  because  they  are  not  well  informed  as  to  the  subject.  In 
the  matter  of  the  virility  of  the  harem  masters,  the  alleged  barrenness 
of  cows  killed  in  July,  August,  and  September,  and  the  possible  dis- 
eases that  may  have  swept  off  large  numbers  of  pups  on  the  island, 
opinions  are  ad^inced  with  bold  freedom  by  men  whose  opinions  are 
not  entitled  to  any  weight  whatever.  I  do  not  remember  that  any  one 
•of  the  many  statements  of  the  hundreds  of  witnesses  who  speak  so 
confidently  on  these  subjects  is  based  either  upon  actual  skill  or  actual 
examination,  by  dissection  or  in  any  practical  way,  of  the  characteristics 
of  fur-seals.  All  the  evidence  shows  that  the  breeding  cows  are  fer- 
tilized within  a  few  days — about  ten  days — after  parturition,  and  that 
until  that  is  accomplished  the  harem  nmsters  control  their  movements 
with  the  most  jealous  care,  and  none  of  them  are  permitted  to  go  into 

0 

the  sea  until  they  are  impregiiated.  They  then  set  out  to  get  food  to 
nourish  the  pups  they  have  borne,  carrying  in  their  bodies  the  living 
germ  of  the  next  creation.  In  these  early  days  the  fact  of  fertilization 
is  not  discernible  even  on  close  examination  to  the  unskilled  eye;  yet 
such  examinations  were  not  made,  (Mid  these  seal-hunters  and  so  called 
professors  unhesitatingly  testify  that  a  cow  seal,  having  milk  in  her 
brotists,  is  barren  because  there  were  no  external  signs  that  she  was 
gravid  with  young. 


118 


i\ 


And  so  it  is  in  respect  of  the  virility  of  tlie  bulls,  a  fact  that  would 
probably  defy  the  most  exact  scientific  examination  to  prove,  is  stated 
with  sublime  confidence  by  Prof.  Elliott  and  other  like  gnessers.  lie 
finds  the  bulls  at  peace  on  the  rookeries,  and  though  they  are  not 
irritated  by  being  crowded  together  as  formerly,  he  concludes  that 
because  they  have  their  domestic  enjoyments  without  the  necessity  of 
jealous  warfare  that  thoy  have  lost  their  virility.  Amonfr  all  polyg- 
amous animals  endowed  with  fighting  capacity  nature  proviiles  for 
destroying  the  excess  of  males  by  the  wars  they  wage  upon  each  other. 
Breeders  of  animals  reach  this  restilt  without  the  necessity  of  permit 
ting  them  to  fight  and  kill  each  other.  It  requires  very  simple  reason 
ing  to  reach  the  conclusion  that,  if  this  waste  of  physical  energy  is 
saved  to  breeding  males  by  their  separation  from  each  other  and  the 
suppression  of  their  warfare,  that  it  will  supply  the  virility  to  meet  a 
greater  demaiul  upon  their  powers  of  procreation. 

No  dissections  seem  to  .ave  been  made  of  dead  ])ups  found  on  the 
islands  on  one  occasion  to  ascertain  whether  they  had  died  of  starva- 
tion or  of  disease,  or  were  swept  oft"  by  tempests  and  drowned  and 
were  thrown  upon  the  ('oasts  in  "  winrows"  by  the  waves  of  the  sea. 
Yet  each  witness  gives  his  opinion  as  to  what  killed  the  jnips  with  as 
nnich  coufidence  as  if  lie  teally  knew  what  he  was  talking  about. 

The  ellort  to  accourit  for  the  disj)arity  of  81,000  killable  seals  on  the 
islands  between  1H8U  and  1800  by  any  of  these  mere  conjectures  is 
founded  upon  this  sort  of  testimony  and  can  not  break  the  force  of  the 
fact  that  in  1800  the  pelagic  hunters  got  51, 0*);")  seals,  while  on  the 
islands,  where  102,017  killable  seals  were  taken  in  1880,  only  21,2;{8 
could  be  found  the  next  season  "by  scraping  the  rookeries,"  as  Lord 
Ilannen  observed.  ' 

The  crucial  test  of  the  necessity  of  forbidding  ])elagic  senling  with 
firearms  in  parts  of  the  ocean  where  seals  iibound  is  the  fact  that  it 
results,  necessarily  and  witlioiit  doubt  in  the  killing  of  gieat  numbers 
of  female  seals,  because  of  their  disposition  to  sleep  when  gravid. 
They  are  more  easily  approached  than  the  males,  and  the  result  is  the 
deptrticilon  of  a  nmch  larger  i»roportioii  of  females  than  of  males. 
The  encouragement  of  this  indiscriminate  killing  of  fenmles,  or  its  tol- 
eration, will  establish  a  practice  that  violates  every  idea  of  the  protec- 
tion and  preservation  of  the  species.  It  legitimates  a  war  upon  the 
race  that  can  not  be  restrained. 

If  we  first  deny  to  this  raceof  valuable  and  docile  animals  (that  have 


" 


«w*«»'irw?i*v?(nffi»r'^T'  • 


il9 


less  dread jjf  the  presence  of  man,  whether  on  land  or  sea,  than  any 
otlior  animal  that  is  classed  as  a  wild  animal)  all  the  protection  that 
the  law  gives  to  animals  that  are  domesticated,  and  for  no  other  end 
than  to  protect  the  merely  tediiiical,  cruel,  and  nnrelcnting  claim  of 
rifjhts  by  its  worst  enemy,  the  pelagic  sealer,  we  should  neve  take  to 
ourselves  the  credit  of  protecting  and  preserving  them.  When  we  arm 
those  enemies  with  double-barreled  shotguns,  with  cj'lindcr  cartridges 
charged  with  buckshot,  and  turn  tl.em  in  upon  the  herd  to  kill  them 
indiscriminately  after  they  have  congregated  in  great  numbers  and 
are  making  their  way  to  their  only  place  of  resort  for  the  purposes 
of  procreation,  we,  theii'  only  protectors,  become  their  destroyers. 
This  is  not  a  liypothectical  case  or  an  exaggerated  statement,  but  is 
the  simple  and  undeniable  truth. 

This  Tribunal,  by  such  a  decree,  will  deny  to  the  fur-seal  species,  all 
ov^r  the  world,  that  protection  which  themunicipal  law  has  always  freely 
and  even  eagerly  extended  to  all  harmless,  docile,  and  useful  aiiimalsthat 
are  valuable  to  man  for  foo«l  and  raiment.  We  will  put  upon  theni  the 
ban  of  outlawry  oidy  because  they  must  go  into  the  sea  for  food,  and 
because  they  do  not  need  to  be  converted  from  their  natural  conditicmor 
disposition  by  the  discipline  or  the  temptations  of  the  skill  of  man  that 
must  be  used  in  taming  savage  beasts.  Nature  having  dispensed  ith 
all  necessity  for  such  inducements  aiul  maniimlations  to  ovcrconie  any 
aversion  of  the  fur-seals  to  tlie  dominion  of  man,  and  having  delivered 
them  into  his  hands  as  a  free  gift,  to  be  used  at  his  pleasure  and  to 
meet  a  want  that  no  otiicr  animal  can  supply,  the  law  ste])S  in  and 
declares  that  because  nature  has  done  this,  and  has  so  placed  it  out 
of  man's  power  to  make  the  seals  any  more  docile  and  tame  by  induce- 
ments and  manipulations  than  tliey  are  by  nature,  tlie  fur-seals  can 
never,  as  a  class,  become  domestic  or  domesticated  animals,  and  can 
receive  no  legal  protection  in  the  sea.  Tlicj'^  are  forever  excluded  on 
such  grounc^s  from  the  legal  possibility  of  domestication,  and  are  handed 
over  to  the  most  formidabhj  enemy  that  ever  hunted  any  animal,  tamo 
or  wild,  doomed  to  inevitable  destruction. 

I  dissent  from  such  opinion  as  being  contrary  to  the  laws  of  God  and 
the  often-expressed  legislative  intentions  of  man;  but  I  yield  to  it  as 
the  sincere  judgment  of  this  Tribunal,  and  refer  to  it  to  show  hoir  vinch 
greafc'r  is  the  necemity  noiv  restintj  upon  this  7Vj7H/nrt/intheam])litude  of 
its  powers  supplied  to  them,  for  this  occasion  and  for  thatpurpose,  to  afford 
substantial protectron  for  the  preservation  of  the  species,    I  will  explain 


1/    'l 


y 


120 

my  meaning  wlien  I  say  that  the  outhiwiy  of  tlie  fur-seal  species  is  con- 
trary to  the  laws  of  God.  Hundreds  or  thousands  of  years  ago  these 
animals  and  the  Aleuts  were  brought  in  contact  by  the  directing  hand 
of  Trovidenee  along  the  shores  and  on  the  islands  of  Bering  Sea. 
No  tree,  no  fruit,  or  grain,  or  grass,  or  cattle  were  there  to  sup- . 
port  human  life;  but  men  were  there,  who  subsisted  on  these  fur-seals 
and  were  clothed  iu  their  .skins.  This  was  nearly  the  only  food  and 
raiment  they  could  obtain  in  a  climate  as  inhospitable  and  in  a  country 
as  rugged  and  dreiiry  as  any  on  the  habitable  globe. 

Only  one  hundred  and  fifty  years  ago,  a  powerful  nation,  Russia, 
came  with  her  great  ships  and  armaments  and  took  the  country  and 
the  people  and  the  seal  herds,  by  riglit  of  discovery,  and  supported  its 
right  by  the  title  known  to  the  law  of  nations  as  title  by  discoverj' — a 
most  tyrannical  and  fraudulent  maxim  of  international  law  which  the 
civilized  woi'ld  has  now  practicallj^  abandoned.  If  this  had  never  been 
done,  the  Aleuts  would  now  be  tlie  owneis  and  rulers  of  that  country; 
and  the  question  we  are  now  discussing  would  be  whether,  under 
international  law  as  it  is  now,  the  food  and  raiment — the  only  valuable 
resource  of  these  poor  and  helpless  people — could  be  taken  by  any  great 
power  and  the  people  left  to  perish.  In  that  case  the  consensus  of  the 
civilized  powers  would  be  that  those  animals  should  be  considered  the 
property  of  the  Aleuts,  the  owners  of  the  breeding  islands,  and  when 
they  left  the  coasts  with  the  intention  to  return  and  visited  the  ocean 
for  food,  that  fhey  sliould  at  least  be  attended  with  the  protection  that 
is  given  by  tlie  law  of  all  civilized  nations  to  domesticated  animals. 
This  is  the  law  of  (lod,  who  first  gave  these  animals  to  those  ntuthern 
tribes  and  made  them  the  staflof  liie  to  them  by  reason  of  their  docil- 
ity, the  regularity  of  their  coming  into  the  service  of  those  people,  and 
their  conii)lete  submission  to  that  service. 

That  law  is  not  changed  because  the  United  States,  a  powerful  and 
wealthy  nation,  has  assumed  to  make  provision  for  these  people  while 
lifting  them  into  a  higher  civilization  and  iindsin  the  fur-seals  the  reve- 
nue that  is  needed  for  these  purposes.  For  more  than  one  hundred 
years  CJreat  Britain  and  her  subjects  have  known  the  fact  that  Russia 
and  the  United  States  have  made  these  fur-seab..  the  basis  of  a  valuable 
industry;  a  means  of  providing  for  the  Aleuts;  an  instrumentality  of 
government;  and  almost  the  only  source  of  revenue  that  country  pos- 
sessed. It  was  not  until  1876  that  any  pelagic  sealer  entered  Bering 
Sea,  and  that  was  a  United  States  vessel  that  was  captured  and  con- 
llscated  by  that  Goverumeut. 


'\ 


I 


j,g|^^lCTj'WS''"''''''''^'^^W!WCT^P^m^g 


121 


1 


J 


The  seal  liunters  bad  depopulated  the  Antarctic  Ooeau .  of  fur-seals, 
aud  had  made  many  successful  raids  on  the  islands  and  coasts  of 
Japan.  Their  poaching  grounds  had  been  exhausted  and  the  hope  of 
great  profits  drew  them  to  Bering  Sea.  They  found  governmental 
resistance  in  Japan,  liussia,  and  the  United  States,  but  they  found  in 
Canada  a  Government  that  would  give  countenance  to  their  raids,  and 
despite  the  best  ettbrts  of  tlie  United  States  and  Great  Britain,  and  of 
their  ordinances  closing  Bering  Sea  to  them,  they  now  swarm  upon 
the  known  route  of  the  migration  of  the  seals,  which  they  follow  with 
immense  fleets.  It  was  this  sudden  aud  dangerous  movement  that 
caused  these  nations  to  agree  that  Ihis  Tribunal  should  settle  the  ques- 
tions that  stood  in  the  way  of  concurrent  action  between  these  Govern- 
ments; and  should  then  determine  reguliitions  for  the  proper  protection 
and  preservation  of  tiie  fur-seals  in  the  water,  and  not  regulations  to  be 
provided  for  the  protection  of  the  pciagic  hunters,  who  are  the  oidy 
humau  destroyers  of  the  fur-seals  that  cannot  be  otherwise  completely 
restrained. 

If  we  will  take  a  correct  view  of  tlie  number  and  the  power  of  these 
destroyers  we  shall  see  in  the  dangerous  aggregation  of  those  enemies  a 
demand  that  we  can  not  reasonably  resist  for  preventing  them  from 
destroying  the  fur-seals  placed  under  our  protection  by  this  treaty. 
In  view  of  the  very  heavy  forces  that  are  and  have  been  marshalled  for 
this  ruinous  purpose,  and  that  are  really  invited  to  increase  their  nunj- 
bers  and  strength  by  the  regulations  oftered  for  onv  adoption  on  behalf 
of  Great  Britain,  we  sliall  And  a  just  and  suBicient  reason  for  firm 
action,  without  being  left  to  conjecture  upon  a  liieager  statement  of 
facts,  aud  abundant  statements  of  loose,  ignorant,  muddy,  conflicting, 
and  partial  opinions  as  to  how  much  wanton  and  needless  injury  has 
already  been  done  to  seal  life,  and  in  what  months  of  the  year  it  has 
been  done. 

In  1892,  the  sealing  fleet  in  tlie  North  Pacific  Ocean  numbered  122 
vessels,  09  of  wliidi  were  under  the  British  flag,  and  53  under  the  flag 
of  the  United  States.  No  other  nations  were  participating  in  tlie  hunt. 
Allowing  to  each  vessel  8  sealing  boats,  though  none  had  less  than  r», 
and  many  of  them  had  15,  there  were  970  boats.  Tiiere  could  not  have 
been  less  than  1,000  boats.  Giving  to  each  boat  a  hunter  and  oarsman, 
there  were  2,000  men  employed  in  hunting.  They  also  had  tlie  ship 
and  its  crew  as  a  base  for  supply  of  ammunition  and  provisions,  and  to 
give  assistance  in  skinning  the  seals  after  hoisting  them  into  the  ship, 


mamm 


\h  ! 


122 

ajul  in  disposing  of  the  (larcasses  and  salting  and  stowing  tlie  pelts. 
Tiicsc  (MOWS,  allowing  10  men  and  otticers  to  each  vessel,  tliougli  the 
numbers  weie  much  greater,  numbered  l,2liO;  in  all,  .5,220  men.  I 
l>la('e  this  estimate  below  that  of  both  Governments  because  1  believe 
Miat  is  a  full  nllowanee  of  the  men  needed,  and  this  business  requires 
no  groat  investment  of  capital  to  make  it  profitable. 

Kach  hunter  has  a  rifle,  and  a  double-barreled  shotgun,  and  takes 
KM)  rounds  of  amnuinitiou  on  each  excursion  from  tiie  ship,  which  he 
usually  expends  in  a  day's  work.  The  guns  are  breech-loading,  rapid- 
liring  weapons,  and  have  fixed  ammunition,  made  watori)roof;  and  are 
filed  by  the  impact  of  the  hanimer  upon  an  explosive  that  is  fixed  in 
the  base  of  each  cartridge.  The  powder  and  the  explosive  for  igniting 
it  are  charged  int*)  a  copper  cup  or  cylinder  that  forms  the  base  of  the 
cartridge,  and  the  lead  is  imbedded  in  the  cylinder,  in  front  of  the 
[towder.  A  sligiit  flange  around  the  exterior  of  this  cylinder  at  its 
base  prevents  its  escape  from  the  gun  in  firing,  and  when  it  is  emptied 
a  very  simple  contrivance  ronu)ves  the  shell  from  the  breach  of  the  gun. 
Fifteen  bm-kshot,  each  a  deadly  missile,  is  usually  the  charge  of  load 
placed  in  each  cylinder  cartridge,  and  if  a  hunter  fires  JOO  shots  in  a 
day,  he  discharges  1,500  of  these  missi  os  at,  or  into,  tlie  seals. 

In  10  days  of  good  sealing  in  the  North  Pacific  out  of  (iO,  the  single 
hunter  would  fire  lo,000  deadly  shots  at  ch»so  range;  and  in  1.")  days 
out  of  00,  in  the  Hering  Sea,  he  would  fire  22,500  deadly  missiles  at  or 
into  the  seals,  even  under  the  more  apparently  forbearing  and  humane 
scheme  of  regulations  ottered  by  Sir  John  Thompson.  But  under  the 
British  scheme  his  opportunities  would  be  miu-h  greater.  In  a  seal- 
ing campaign  of  two  months  in  the  North  Pacific  and  throe  months  in 
IJoring  Sea^ — continuous  months — the  single  hunter,  during  twenty-five 
days  ')f  good  sealing  out  of  one  huiulred  n\ui  fifty-three  days  (Sundays 
iiK^luded),  would  fire  at  and  into  the  seals  .17,500  deadly  cfirtridgt. . 
One  hunter  with  that  opportunity,  if  he  was  moderately  skilled  in 
shooting  seals,  would  destroy  2,000  or  more  seals  in  153  days  of  hunt- 
ing. 

It  is  idle  to  suppose  that  out  of  l."».'i  days  of  hunting  he  would  not 
find  25  days  of  good  sealing,  in  which  he  would  fire  100  shots  each  day. 
The  average  for  the  entire  period  would  bo  21  shots  each  day  for  each 
hunter.  Now  multiply  these  figures  by  the  number  of  hunters  in  the 
entire  fleet  of  122  vessels — 9G7,  and  in  the  25  days  of  good  sealing 
weather  out  of  the  1.53  days  spent  iu  the  North  Pacific  and  Bering 


vL 


»> 

U' 


123 


i 


.. 


Sea,  they  would  (ire  at  and  into  tlie  seals  .'{,550,824  eartridgos,  each 
loaded  with  15  buckshot,  all  deadly  missiles,  and  nuinbeiinjr  53,L'(!li,3(;(). 
Now,  let  us  suppose  that  three  fourths  of  these  shots  failed  to  hit  the 
seals  and  that  only  half  of  the  number  that  hit  them  either  killed  the 
seals  or  wounded  them  mortally,  and  we  expose  this  herd  of  seals  to 
an  annual  loss  of  443,853  seals  at  the  very  lowest  possible  estimate 
and  upon  a  basis  of  facts  that  no  one  can  safely  dispute.  This  shows 
that  not  more  than  (me  seal  is  taken  out  of  every  five  seals  shot.  This 
86'  lerd  in  its  present  depleted  condition  can  not  contijine  to  exist  if 
half  that  number  of  seals  is  taken  from  it  in  each  of  the  years  from 
1804  to  the  end  of  the  century.  And  if  the  percentage  of  female 
seals  killed  is  ecjual  to  two-thirds  or  even  half  the  whole  number,  the 
speed  and  certainty  that  must  attend  the  destruction  of  the  herd  will 
be  very  greatly  increased  under  the  plan  of  .Sir  John  Thompson. 

If  we  expect  that  a  less  number  «»f  vessels  will  hereafter  assend)le  for 
seal  hunting  than  came  in  1802,  on  what  ground  can  we  safely  base 
such  a  conjecture? 

The  skins  of  seals  are  worth  $10  apiece;  they  were  worth  that  much 
in  182 J,  and  if  the  average  catch  of  each  vessel  is  only  250  for  live 
months,  or  50  seals  a  month,  it  is  a  very  large  earning,  and  it  leaves 
half  the  year  for  other  voyages.  If  the  attack  on  the  seals  is  permitted 
when  they  are  herded  together  in  Bering  Sea  in  one  vast  body,  or 
when  traveling  in  largo  parties  up  the  l^acilic  coast,  the  limiting  of 
the  hunting  season  to  a  brief  period  will  only  increase  the  activity  of 
the  pelagic  sealers,  and  as  much  killing  will  be  done  with  200  vessels 
in  one  month  as  would  be  done  with  100  in  two  months,  if  the  open 
season  was  two  months  instead  of  one.  Wo  could  no  more  safely 
assume  that  the  sealing  tleet  in  1804  or  1805  will  not  exceed  the  number 
assembled  in  1892  than  we  could  have  assumed  in  1870  that  pelagic; 
hunting  would  be  limited  to  a  single  vessel  and  could  not  possibly 
reach  the  number  of  122  vessels  by  the  year  1892.  The  experience  of 
the  last  seventeen  years  on  this  subject  is  not  to  be  disreganled. 
It  is  a  living  lesson  of  truth  that  the  legerdenuiin  of  minor  and  astute 
calculations  can  not  conceal  under  a  ch)ud  of  doubt.  The  fact  remains 
that  in  the  year  1892,  122  vessels  assembled  in  the  North  Facitic  aud 
took  73,394  skins  of  dead  animals,  killing  or  fatally  wounding  at  least 
twice  that  number— 140,788— in  all,  220,182  seals,  of  which  two  thirds 
were  females,  numbering  146,794. 
There  can  be  but  little  doubt,  on  all  the  evidence,  that  the  number 


mmmm 


124 

of  female  seals  killed  and  wounded  was  more  than  double  tlie  number 
of  skins  that  were  taken.  There  is  also  as  little  doubt  that  two-thirds 
of  the  females  killed  or  fatally  wounded  were  gravid,  and  on  their  way 
to  the  islands  to  be  delivered  of  th«ir  young;  and  each  seal  in  that 
condition  was  then  the  repository  of  two  lives  that  were  thus  destroyed; 
the  unborn  pups  being  99,802. 

This  uiimbur,  adding  the  number  taken 73,  394 

And  the  number  killed  and  wounded,  but  not  taken 220, 182 

And  the  unborn  pups  of  the  U(),7'J4  females  killed  or  futally  wounded 'JO,  iHi'2 

Givesa  total  of 393,438 

How  can  it  be  said  that,  on  the  evidence  in  this  case,  this  is  not  a 
true  and  safe  estimate  of  the  result  of  the  work  of  destruction  wrought 
by  122  sealing  vessels  in  1892,  in  the  North  Pacific  while  they  were 
limited  to  tliose  waters  by  the  modus  vlvendi  of  1891  IT 

Reduce  this  estimate  if  you  will  by  one-half  and  make  it  only 
190,714  seals  of  all  conditions  and  sexes  that  are  killed,  and  the  num- 
ber destroyed  is  nearly  twice  as  gi-eat  as  the  number  of  seals  that 
were  killed  and  recovered  in  1892.  Until  these  facts  are  changed  or 
expunged  from  the  record,  I  can  find  no  occasion  for  examining  in  this 
opinion  the  minor  details  that  rehilc  to  other  seasons.  These  facts, 
if  they  arc  to  be  repeated  indefinitely,  destroy  all  hope  of  preserving 
these  seals. 

The  year  1892  with  its  actual  experiences  stands  nearest  to  1893,  and 
is  the  safest,  as  it  is  the  most  complete,  guide  to  the  truth  of  the  situ- 
ation. I  therefore  take  that  year,  with  its  ascerfa'ned  facts  and 
results,  as  the  chief  basis  of  my  objections  to  the  s  Jiemes  of  regu- 
lations proposed  by  Great  Britain  and  departed  from  a.id  modified,  but 
scarcely  improved,  by  the  plan  of  Sir  John  Thompson. 

That  Sir  John  has  found  it  necessary  to  depart  from  the  British 
proposals  is  a  grave  concession,  espeiaally  in  the  point  so  earnestly 
cont'^sted  by  Great  Britain,  that  this  Tribunal  has  no  jurisdiction  out- 
side of  Behring  Sea.  He  proposes  a  zone  of  absolute  prohibition  of 
pelagic  sealing  of  10  miles  around  the  Aleutian  Islands. 

In  considering  regulations  as  they  may  be  shaped  and  modified  by 
other  considerations  than  the  method  that  will  best  protect  and  pre- 
serve the  particular  class  of  fur-seals  placed  under  the  protection  of 
this  Tribunal  by  the  treaty  (if  we  are  to  tak3  siich  liberties  with  our 
powers),  the  Tribunal  must,  in  justice,  examine  into  the  rights  of  the 
pelagic  sealers  of  the  United  States,  in  the  Pacific  Ocean  and  in  Ber- 


4 


126 


.  h 
4 


ing  S(;a,  ii8  they  will  bo  when  the  stiitutots  of  the  United  St-iitos  shall 
permit  them  to  eator  with  the  Canadians  and  al.s()  with  the  people  of 
otiior  nations  into  that  hai-vest  Held,  and  to  have  etpial  riglits  in  tlie 
spoils  that  we  are  asked  to  pliwe  within  tlieir  reach. 

Altlioiigli  we  have  not  yd!  considered  the  Hritisli  ease  on  its 
merits,  which  covers  only  the  claim  of  right  to  unlimited  and  un- 
controlled pelagic  sealing,  and  have  only  considered  the  objections 
to  the  case  of  the  United  States  tliat  are  stated  iu  the  British  counter 
case,  1  must  assume  that  the  citizens  and  subjecits  of  the  rcsitective 
Governments  everywhere  on  the  high  seas  are  to  have  e([ual  rights 
and  privileges.  If  it  is  the  right  and  j)rivilege  of  the  pelagic  sealers  of 
Canada  to  waylay  the  seals  in  May  and  June  at  Unimak  Pass  or  any 
other  pass,  and  in  Jidy,  August,  and  September  to  waylay  them  in 
Bering  Sea  near  the  passes  or  near  the  breeding  islands,  the  same 
right  must  be  accorded  to  the  citizens  of  the  United  States  who  for 
personal  gain  choose  thus  to  violate  the  declared  public  policy  of  their 
Government. 

If  it  must  be  that  this  Tribunal  will  iuHict  upon  the  United  States 
the  double  indignity  of  having  her  wise  and  honorable  policy  of 
preserving  the  fur-seal  8i>e(!ies  disregarded  by  her  own  peojde,  under 
the  suggestions  of  the  award,  and  of  requiring  the  concurrent  action 
of  Great  Britain  in  tiie  principles,  if  not  iu  all  the  details  of  laws  and 
of  administration,  in  guarding  the  proposed  30-mile  zone  against  intru- 
sion by  citizens  of  the  IJ^nited  States,  we  should  at  least  be  careful 
to  protect  the  United  States  against  a  d(^finition  of  the  rights  and 
powers  of  pelagic  sealers  that  is  so  radical  as  to  break  down  the 
admitted  rights  and  principles  of  self-defense. 

The  same  necessity  does  not  exist  for  guarding  Great  Britain  with 
protective  regulations,  because  no  pelagic  hunting  is  done  within  thou- 
sands  of  miles  of  any  i)lacc  where  she  has  any  sealing  industry,  and 
the  interest  of  the  pelagic  hunters  is  in  accordance  with  her  ])re8ent 
policy  of  giving  them  free  rein  in  the  destruction  of  fur-seals  if  they  can 
miike  any  money  by  the  operation,  as  her  policy  is  now  disclosed  iu  the 
regulations  she  has  submitted. 

As  to  <;itizen8  of  the  United  States  wlio  would  be  thus  encouraged 
by  such  an  award  policy  to  raid  upon  the  industries  and  revenues  of 
their  Government  during  five  months  of  the  year  and  t/O  defy  its  public 
policy,  it  may  turn  out  that  the  United  States  will  abandon  them  to 
their  own  devices  for  protection  while  they  are  engaged  in  this  selfish, 
cruel,  and  unpatriotic  work. 


SI 


h) 


126 

And  hor«  cornea  to  view  tlio  most  daii},forous  uihI  dilVuMilt  task  iuid 
tlu*  most  iiTitatini;  tliat the  two  (JoverniiuMita  will  Iiavi;  to  juTform  in  ivg- 
iilatiiig  as  between  these  i»ela{,'ie  sealers  tlieirriylits  while  they  an;  pur- 
suing and  eaptiiriiig  fur  seals  with  double-barreled  shotyuiis.  The 
]>elts  are  worth  ^H)  each,  a  nuicii  laryui'  sum  than  is  the  averajic  yield 
of  the  richest  gold  mine  per  diem  to  tiie  gold  hunters;  aiul  we  know 
how  imp(»s8ible  it  is  to  restrain  by  law  the  »'i,)l(.|K!e  that  has  attended 
their  struggles  for  "diggiii;,s,"  where  none  of  them  own  the  soil  or 
any  privilege  in  it  except  to  discover  new  leads  and  to  dig  for  gold. 

On  the  high  seas  .'50  miles  or  more  from  any  land  there  are  no  courts 
and  call  not  be  any  elllcient  police  by  (Mther  or  both  nations.  Conced- 
ing to  tiieni  the  best  intentions  and  tlie  most  honorable  zeal  in  protect- 
ing the  rights  of  all  concerned,  they  will  fail  to  prevent  those  personal 
conllicts  between  the  ravenous  pelagic  sealers  around  the  .">U-niile  zone, 
esi>e(!ially,  which  in  the  end  will  embroil  the  two  countries. 

The  United  States,  as  I  have  observed,  may  not  choose  to  take  up, 
as  an  international  question,  the  (luarrels  of  lier  <:itizens  with  Canadian 
subje<!ts  while  they  are  both  engaged  in  doing  a  great  national  wrong 
to  that  (Government;  but  they  will  be,  naturally,  very  chary  of  the 
dealings  of  Great  Uritain  Avith  such  controversies.  There  will  be  no 
internati(nial  court  for  the  hearing  of  such  controversies  between 
private  persons  engaged  in  sealing  in  boats  and  canoes  on  the  high 
seas,  and  they  will  probably  be  settled  by  the  vin  major.  The  fact  that 
both  i)arties  will  be  heavily  armed  for  assault  upon  the  seals  will  nuvke 
such  collisions  very  dangerous,  and  their  occurrence  almost  certain. 

A  United  States  sealer  finds  a  school,  or  party  of  seals  and  goes  to  the 
leeward  to  get  in  gunshot  of  Miem;  andai)arty  of  Canadians  desiring  to 
kill  them,  approaches  the  seals  from  the  windward  and  shoots  one  with 
a  ritle  before  the  other  hunter  can  get  in  range  with  his  shotgun.  A 
«iuarrel  ensues  and  results  in  bloodshed.  JJy  a  iiction  of  law,  they  are 
each  upon  the  teriitory  of  their  resi)ective  countries,  and  the  settlement 
of  that  case,  without  the  interventicm  of  the  Covernments,  would  tax 
the  wisdom  equal  to  that  of  Solomon.  If  one  sealer  iu  his  boat 
shoots  at  a  seal  that  another  is  appvoaidiing  from  the  other  side, 
and  wounds  or  kills  the  hunter,  what  is  to  be  done  in  that  case? 
That  contliet  will  residt  from  such  occasions  is  almost  certain,  and  how 
it  can  be  settled  is  most  uncertain.  Illustrations  are  feeble  to  portray 
the  difficulties  and  conjectures  are  far  short  of  the  reality  as  to  the 
contlicts  that  must  occur  in  the  wild  hunt  for  seals  that  the  British 
regulations  invite. 


i 


127 


± 


Sir  John  Tliuiii])Hnn  spoko  of  tlio  generosity  of  the  Hritisli  Govorii- 
iiKMit  ill  trciitiiig  with  (lie  lliiit«'(l  States  for  the  i>r('sorviitioii  of  the 
fur-seals.  There  was  as  iiiueli  {{''"•'«'<»'^ity  on  one  side  as  on  tiie  otiier, 
and  none  on  eith(!r.  It  was  a  business  matter  rehitiiij;  to  inuterial  in- 
terests and,  I  may  well  assert,  «f  e<iual  importance  t(»  both  liigh  eon- 
traeting  powers,  which  took  its  origin  in  what  Sir  .lohn  has  aptly  terni(>d 
tiie  "bursting  in"  of  the  (Canadians  into  Bering  Sea  in  KSHti.  It  was 
a  sudden  "bursting  in,''  and  had  the  appearance  of  a  violent  and  de- 
fiant experiment — a  raid.  Canada  and  the  Tnitt'd  States  since  IHIS 
have  had  many  severe  con  t<'ntions  over  the  tisheri»'sof  the  northeastern 
coast,  in  which  arrests  of  ships  and  of  persons  hiive  led  to  very  earnest 
discussion.  The  United  States,  claiming  certain  treaty  rights  tiiere, 
have  not  burst  into  any  of  the  waters  that  (Canada  lias  claimed  as  her 
fishing  preserve,  altiioiigh  her  people  have  been  treated  there  with 
severe  inhospitality. 

Tiiat  (lovernmeiit  has  [(referred  to  prevent  collision  and  strife  by 
restraining  her  people  from  bursting  into  places  where  they  believed 
that  tlieir  rights  entitled  them  to  go.  It  was  an  easy  matter  for  Canada 
to  have  i)ropounded  Its  claim  of  rights  to  the  United  States,  and  to  have 
had  them  deeded  upon  without  permitting  Iku'  citizens  to  go  into 
Hering  Sea  with  their  vessels  and  hunters  armed  with  double  barreled 
shot  guns  and  hunt  seals  up  to  the  3-mile  limit,  which  she  now  admits 
should  bo  10  miles  as  to  such  hunting.  It  was  (piitcs  as  easy  for  Can- 
ada to  restrain  her  citizens  from  bursting  into  I»ering  Sea  as  it  was  to 
enact  her  system  of  very  stringent  laws  to  pnttect  her  preserve  of  hair 
seals  1,000  miles  from  Canada,  in  the  open  ocean  off  the  coast  of  (Jreen- 
land.  If  C^anada  had  passed  any  reasonable  laws  foi'  protecting  these 
interests  of  the  United  States,  even  during  negotiations,  a  serious  dis- 
turbance of  neighborly  feeling  could  have  been  avctided,  and  fearful 
havoc  in  the  seal  herds  passing  her  coasts  would  have  been  prevented. 
The  enactment  of  such  a  law  would  have  enabled  the  United  States 
to  have  contrtdled  her  own  people  as  to  hunting  seals  in  the  North 
Pacific  without  incurring  the  reproach  from  them  of  denying  to  them 
the  lu'ivileges  that  Canadian  subjects  enjoyed  on  the  high  seas,  and  of 
aUowing  them  to  reap  all  the  profits  of  the  massacre  of  the  fur-seals. 
The  pcdicy  of  Canada  has  made  it  impossible  for  Congress  to  restrain 
the  people  of  the  United  States  from  particii)ating  in  this  reckless 
destruction,  and  from  this  defiance  of  \wr  public  polic^y  and  laws.  Yet, 
in  the  presence  of  this  obvious  legislative  impossibility,  it  seems  equally 


128 


iinpoMsible  to  uiiHwur  the  thrimt  th»t  is  »lwny8  inado  at  the  Uiiitud 
Htatt^s  in  ai');uinunt,  in  cenHuru  of  lier  conduct,  that  CongicHB  Iuvh  not 
enacted  laws  toi»revent  citizens  of  tlie  United  States  from  ]icla);ic  linnt- 
inj;  in  the  Noitli  Pacific  Ocean.  Tlio  fact  wliicli  no  one  seems  to  deny, 
tiiat  citizens  of  tiie  United  States  tooli  slielter  under  the  niitisii  Haj; 
and  Canadian  legistry  to  evade  tlie  laws  of  the  United  States  exclud- 
ing them  from  sealing  in  Jioring  Sea,  seems  to  have  been  forgotten. 

That  fact  ah)ne  shows  how  impotent  would  have  been  the  laws  of  the 
United  States  to  protect  and  preserv*^  the  fur-seals  against  the  depre- 
dations of  its  own  people  while  sealing  under  the  shelter  of  the  IJritish 
Hag.  Canada  controls  the  registry,  licensing,  and  clearance  of  sealing 
vessels  in  her  sea-ports,  as  is  shown  by  her  statutes  relating  to  the 
hair- seal  fisheries.  A  simple  regulation  would  have  saved  the  fur-seals 
from  this  exterminating  raid  that  the  evidence  in  this  case  has  disclosed. 

But  Canadian  subjects  seem  to  have  a  double  allegiance  and  a  two- 
fold protectiou  under  their  colonial  system.  The  Canadian  government 
can  permit  them,  without  control,  to  burst  into  Bering  Sea  and  prevent 
the  seals  from  reaching  the  islands  of  the  United  Stat<'S,  and  when 
such  raids  are  followed  by  arrests  they  can  claim  the  imperial  power  of 
Great  Britain  to  protect  them. 

Whatever  censure,  therefore,  may  be  visited  upon  the  United  States 
for  her  uca^'ngs  with  her  own  people,  it  must  be  admitted  that  the 
dilliculties  o«  the  situation  have  been  caused  by  the  policy  that  her 
neighboi  b.is  seen  proper  to  pursue.  If  such  censures  had  been 
just  they  would  have  been  made  by  Great  Britain  when  negotiations 
in  respect  to  this  treaty  were  pending.  That  Government  did  not 
venture  to  allude  to  the  subject.  It  seems  to  have  beeu  held  back  as 
a  n^.ake  weight  for  the  argument  and  considerations  of  this  case. 

When  the  United  States  shall  have  an  opportunity  to  consider  that 
(juestion  in  her  future  discussions  of  such  uiatters,  should  tliat  bo 
unhappily  necessary,  her  vindication  will  be  found  to  be  complete.  Mr. 
Bayard,  who  first  pointed  out  the  rights  of  the  United  States,  which 
included,  in  substance,  the  five  points  we  have  just  been  discussing, 
and  which  wore  advanced  subsequently  with  great  earnestness  by  Mr. 
Blaine,  proposed  to  leav^  those  matters  out  of  consideration,  and  to 
proceed  at  once  to  establish  the  regulation  of  pelagic  hunting  by  des- 
ignating an  area  within  which  a  close  season  should  be  enforced.  And 
afterwards,  when  arrests  were  made  of  the  Canadian  vessels  tliat  wore 
killing  seals  in  Bering  Sea,  Mr.  Bayard  ordered  their  release.    This 


^*wM?r^ 


MM 


129 

wa8«loii(>,  not  bticrtUKo  Mr.  Hiiyiinl  lnul  roceiU'tl  IVjhii  tluj  iitlitiido  ii» 
liuld,aH  wiiH  conteiKhMl  by  thi^  liritisii  coiiiihi^I  in  oral  iti';;iiiii(>iii,  biiMor 
tliu  reuNon  Miat  a  iioj^otiation  wuh  (tuntlin^  tor  Miu  HO.tlli>nM>nt  of  nil  1\h\ 
cuntrovei'Hy,  an«l  lie  (li<l  not  think  that  it  wonid  promote  }{ood  will  Ik; 
tween  the  natiouH  to  puHh  the  clainiM  of  tlu)  (Jnitcd  States  by  thu.exeririe<e 
of  force  while  it  was  neg»>tiatin};  with  (treat  IJritiiin  abontfhe  validity 
of  thost}  claims.  After  nuch  example  of  considerate  action  on  the  |>art 
of  the  United  States,  it  is  not  doinj^jnstice  to  either  party  to  claim  that 
theotlier  was  treating  with  it  in  a  spirit  of  generosity  or  of  forb«Mirance. 

Does  anyone  doubt  that  the  Liriited  States  a<;ted,  in  all  this  con- 
troversy, upon  a  flrm  belief  in  the  justice  of  its  claims  in  every 
particular?  If  thosodaims  were  just,  or  made  in  thi'tflrm  belief,  it  was 
a  matter  of  as  nnich  concern  to  Great  Britain  as  it  was  to  the  United 
States,  iMjth  in  the  view  of  justice  and  as  to  the  preservation  of  the 
I)eace,  that  they  should  be  fairly  considered  and  settled. 

Great  Britain  has  never,  until  the  scheme  of  her  regulations  were 
presented  to  this  Tribunal,  assorted  that  the  United  States  luui  not  a 
special  and  peculiar  interest  in  the  fur-seals  frequenting  JJering  Sea. 
In  the  diplomatic  correspondence  that  Government  conceded  smrh  a 
peculiar  interest  in  the  United  States,  but  has  at  last  got  its  <;onsent 
to  dwarf  the  concession  to  an  area  that  would  contorm  only  to  the  intei'- 
eats  of  the  Canadian  sealers. 

It  was  these  men  who  compelled  Great  Britain  to  interpose  fur  their 
protection,  and  when  that  Government  found  that  their  ])ractices  were 
destroying  a  great  and  valuable  element  of  commerce,  they  denuindeil 
an  investigation  of  the  necessity  for  restraining  pelagic  hunting  by  a 
joint  commission,  ami  this  is  the  iiiiti!»l  point  of  this  Arbitration. 

Having  touched  on  the  general  (juestions  or  subjects  now  presented 
for  our  consideration,  and  leaving  to  Mr.  .histice  Harlan  the  task  he 
has  cLosen  of  making  a  closer  examination  of  the  evidence  bearing  on 
these  questions,  I  will  take  up  the  plans  or  schemes  of  regulations,  so 
far  laid  before  the  Tribunal,  and  endeavor  to  «t,ate  my  understanding 
of  what  they  are  and  what  will  be  the  results  if  any  of  them  are 
ado]>ted. 

The  further  remarks  of  Senator  Morgan  on  this  topic  related  to  the 
comparative  merits  of  the  several  schemes  or  i)rojects  of  regulations 
presented  to  the  Tribunal,  and  are  not  bere  given. 

O 
11495  M 9 


